Duress by threats

Question 1

complete or partial defense?

Answer 1

where defense of duress is successfully pleaded it absolves the D of all criminal liability.

Question 2

what which crimes is duress available?

Answer 2

defense to all crimes except murder, attempted murder and treason

Question 3

R v Howe

Answer 3

HoL ruled the defense not available for anyone charged of murder even if they were secondary party.

Question 4

R v Wilson

Answer 4

duress cannot be defense for murder even where D is young and less able to resist pressure.

Question 5

what case was duress by threats defined in?

Answer 5

A-G Whelan

Question 6

what is the definition of duress by threats?

Answer 6

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”.

Question 7

what case gave the elements of the defense?

Answer 7

R v Hasan (2005)

Question 8

what are the elements of the defense?

Answer 8

1. threat of death/injury
2. threat made against D/someone close to him
3. D’s response to threat must be reasonable
4. crime committed must be as a direct result of threat
5. no evasive action possible e.g. police
6. subjected to the threat involuntarily

Question 9

1. threat

Answer 9

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.

Question 10

multiple threats sufficient for threat?

Answer 10

multiple threats can amount to something considered ‘more serious’ even though each threat in isolation cannot allow the defense.

Question 11

what is the case for multiple threats?

Answer 11

R v Valderramma-vega (1985)

threats to reveal homosexuality taken into account when coupled with threats of serious violence.

Question 12

threat need not exist in fact

Answer 12

Safi (2003) D must believe threat existed even if it didn’t

Question 13

threat has to be extraneous

Answer 13

Rodger and Rose (1998) threatened themselves so convicted,

Question 14

2. threat made to who?

Answer 14

D, immediate family, someone close to him, someone whom he is responsible

Question 15

3. reasonable response to threat

Answer 15

2 stage test to establish if D acted ‘reasonably’

test established in R v Graham

Question 16

what is the 1st stage in the 2 stage test for reasonable response?

Answer 16

subjective- was D compelled to act as he did as he genuinely believed in the effectiveness of the threat

Question 17

what is the 2nd part of the 2 stage test for reasonable response?

Answer 17

if so, would a sober person of reasonable firmness, sharing characteristics of the accused, have responded in the same way?

Question 18

case that highlights what characteristics to consider?

Answer 18

R v Bowen (1997)

Question 19

what characteristics are accepted?

Answer 19

• recognized mental illness, psychiatric condition
• age (Ali 1989)
• dependent helplessness (Emery)
• physical illness, pregnancy

Question 20

what characteristics are not accepted?

Answer 20

• low IQ (bowen)

- emotionally unstable (hurst)

Question 21

4. crime committed is direct result of threat

Answer 21

courts must be satisfied that threat D faces relates directly to crime committed by D

Question 22

4. R v Cole (1994), nominated crime

Answer 22

in being threatened to re-pay money, D committed bank robbery, appeal rejected as he had not been told to commit robberies

Question 23

5. no evasive action possible

Answer 23

duress can only be a defense if D is placed in a situation where they have no self avenue of escape.

Question 24

case for evasive action

Answer 24

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.

Question 25

R v Hudson and Taylor

Answer 25

accepted than police protection might not always be effective

Question 26

6. self induced duress

Answer 26

where D puts himself in a situation where they subsequently face a threat , duress cannot be used
must be involuntarily subjected to threat.

Question 27

self induced duress - joining a criminal gang

Answer 27

sharp (1987)

Question 28

self induced duress- Hasan

Answer 28

D puts himself in a position where he foresaw or should have foreseen the risk of being subjected to compulsion

Question 29

imminence of threat

Answer 29

• 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

Question 30

case that sets of imminence of threat

Answer 30

Abdul-Hussain (1999)