Duress by threats Flashcards
complete or partial defense?
where defense of duress is successfully pleaded it absolves the D of all criminal liability.
what which crimes is duress available?
defense to all crimes except murder, attempted murder and treason
R v Howe
HoL ruled the defense not available for anyone charged of murder even if they were secondary party.
R v Wilson
duress cannot be defense for murder even where D is young and less able to resist pressure.
what case was duress by threats defined in?
A-G Whelan
what is the definition of duress by threats?
when accused was told to commit an offense and was subject to
“threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance”.
what case gave the elements of the defense?
R v Hasan (2005)
what are the elements of the defense?
- threat of death/injury
- threat made against D/someone close to him
- D’s response to threat must be reasonable
- crime committed must be as a direct result of threat
- no evasive action possible e.g. police
- subjected to the threat involuntarily
- threat
threat must be of death or serious personal injury
threats must cause D’s will to be so overborne by the threats they commit act they would not do otherwise.
multiple threats sufficient for threat?
multiple threats can amount to something considered ‘more serious’ even though each threat in isolation cannot allow the defense.
what is the case for multiple threats?
R v Valderramma-vega (1985)
threats to reveal homosexuality taken into account when coupled with threats of serious violence.
threat need not exist in fact
Safi (2003) D must believe threat existed even if it didn’t
threat has to be extraneous
Rodger and Rose (1998) threatened themselves so convicted,
- threat made to who?
D, immediate family, someone close to him, someone whom he is responsible
- reasonable response to threat
2 stage test to establish if D acted ‘reasonably’
test established in R v Graham
what is the 1st stage in the 2 stage test for reasonable response?
subjective- was D compelled to act as he did as he genuinely believed in the effectiveness of the threat
what is the 2nd part of the 2 stage test for reasonable response?
if so, would a sober person of reasonable firmness, sharing characteristics of the accused, have responded in the same way?
case that highlights what characteristics to consider?
R v Bowen (1997)
what characteristics are accepted?
- recognized mental illness, psychiatric condition
- age (Ali 1989)
- dependent helplessness (Emery)
- physical illness, pregnancy
what characteristics are not accepted?
- low IQ (bowen)
- emotionally unstable (hurst)
- crime committed is direct result of threat
courts must be satisfied that threat D faces relates directly to crime committed by D
- R v Cole (1994), nominated crime
in being threatened to re-pay money, D committed bank robbery, appeal rejected as he had not been told to commit robberies
- no evasive action possible
duress can only be a defense if D is placed in a situation where they have no self avenue of escape.
case for evasive action
R v Gill 1963, threatened unless stole a lorry, had a period of time of safe avenue of escape so could not rely on the defense.
R v Hudson and Taylor
accepted than police protection might not always be effective
- self induced duress
where D puts himself in a situation where they subsequently face a threat , duress cannot be used
must be involuntarily subjected to threat.
self induced duress - joining a criminal gang
sharp (1987)
self induced duress- Hasan
D puts himself in a position where he foresaw or should have foreseen the risk of being subjected to compulsion
imminence of threat
- must be imminent peril of death/injury to D
- peril must operate in D’s mind at time of committing the act so as to overbear his will
- execution of threat need not be immediately in prospect
case that sets of imminence of threat
Abdul-Hussain (1999)
