DURESS BY THREAT & CIRCUMSTANCE Flashcards
what is duress by threat
a full defence where the defendant has committed an offence due to being threatened with death or serious injury
AG v WHELAN
what do the cases of Howe + Gotts and Pommell (circumstance) state about the defence?
it can be a full defence for all crime except murder
who must nominate the specific crime according to Cole
the one making the threat
what do the cases of Martin and Ortiz state about who the threat must be directed at?
must be directed at the defendants immediate family or to whom they feel responsible for
what does the case of valderrama-vega set out
that the threat must be of death or serious injury
will threat to expose sexuality be enough to satisfy the defence?
no
is threat to rape enough to satisfy the defence
yes
is threat to psychological health enough?
no - Baker and Wilkins
is threat to damage property enough
no
What is the 2 stages test set out by Graham that will consider injury
1.)was d compelled to act because they reasonably believed that they had good cause to fear death (subjective test ~ Cairns)
2.) would a sober person of reasonable firmness with similar characters with d have reacted the same (objective test ~ Bowen)
What are the characteristics that can be considered for the objective test
mental illness
disability
age
gender
pregnancy
but not low iq (BOWEN) or addiction (FLATT)
What do the cases of Abdul-Hussain, Hudson and Taylor and Shayler set out
threat must be imminent although not immediate
What does the case of Gill set out
there must not be a safety value of escape such as going to the police
What does the case of Hasan set out
(THREAT)
duress is not a defence where it is self induced either because:
d joins a criminal gang he knows is dangerous
or puts himself in a position where he realises or ought to realise he could be compelled to commit a crime by being threatened
What is duress by circumstance
full defence where d is forced to act by surrounding circumstances rather than a person
WILLER
should there be a real threat for duress of circumstance to apply
there is no need a real threat just a threat perceived by D
(CAIRNS)
