duress by threats Flashcards
what is it not available for?
murder or attempted murder
what is it?
complete defence, if successfully argued results in complete acquittal.
when can duress be used?
D has done the offence and has the necessary mens rea and acts real but they haven’t had an effective choice in the actions.
what are the 2 types?
duress of circumstances
duress by threats
r v howe
D was allowed duress for first killing as a secondary party, not allowed for second killing as primary offender.
Lord Hailsham
“I do not at all accept in relation to the defence of murder it is either good morals, good policy or god law to suggest…that the ordinary man of reasonable fortitude is not supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own”
r v gotts
D threatened by father to stab his mum. convicted of attempted murder. Duress not available
r v wilson
D and father charged with murder of mother. D said too frightened of dad not to help, duress provides no defence for murder.
r v Valderrama vega
illegally imported cocaine. claimed death threats to his family & disclose he was gay & financial pressure. Only threats of death could constitute duress, but jury entitled to consider whole of threats
what is the graham subjective test?
Was the defendant compelled to act as they did because they reasonably believed they had good cause to fear serious injury or death
what is the graham objective test?
if so, would a sober person of reasonable firmness, sharing the same characteristics of the accused, have responded in the same way?
r v graham
man lived with his wife and violent man. man told D to hang his wife, hung her for 1 min, she died. murder conviction upheld.
r v martin
it was ruled that duress and self defence should be treated in the same way in regard to belief of circumstances.
r v Bowen
set out what characteristics can be taken into account. characteristics must relate to the ability to resist pressure and threats.
what characteristics are taken into account?
age- older and younger people pregnancy-additional threat serious physical disability recognised mental illness or psychiatric disorder. not including low IQ gender
r v gill
man and wife told to steal a lorry. had a period of time where they could’ve raised the alarm so had “a safe avenue of escape”
police protection
not always effective
deciding if police protection was realistic course-age & circumstance of threat & risks of seeking police protection
imminence of threat
threat must be effective at the moment the crime is committed
threats don’t need to be carried out immediately
r v Hudson & Taylor
no duress as threat couldn’t be put into effect while they were giving evidence
no reason why they couldn’t give truthful evidence
r v Hussain
feared they would be sent back to hijacked a plane
appeal quashed convictions as threat need not be immediate but hanging over theD.
when can it be used?
can only use if threats are to make them commit a specific offences
r v hasan
not available when “as a result of the accused’s voluntary association with others engaged in criminal activity, HE FORESAW OR OUGHT REASONABLY TO HAVE FORESEEN the risk of being subjected to any compulsion by threats of violence.
r v shepherd
was with gang of shoplifters usually non violent. D said stop then threatened with violence. no knowledge gang would turn violent
Availability & cases
all offence but murder attempted murder r v howe r v gotts
