Duress By Threats Flashcards
What is the defence of duress by threats?
It is a full defence where the defendant has committed an offence due to being threatened with death or serious injury.
Example: AG v Whelan
To which crimes can the defence of duress apply?
It can be a defence to all crimes except murder and attempted murder.
Examples: Howe, Gotts
What must be nominated by the one making the threat?
The specific type of crime must be nominated.
Example: Cole
Who can the threat be directed towards for the defence to apply?
The threat has to be to the defendant, his immediate family, or a third party to whom the defendant feels responsible.
Example: Martin and Ortiz
What type of threat is required for the defence of duress?
The threat must be of death or serious injury.
Example: Valderrama-Vega
Is a threat to expose sexuality sufficient for the defence of duress?
No, a threat to expose sexuality is not enough to satisfy the defence.
Is a threat to rape sufficient for the defence of duress?
Yes, a threat to rape is enough to satisfy the defence.
Is a threat to psychological health sufficient for the defence of duress?
No, a threat to psychological health is not enough.
Example: Baker and Wilkins
Is a threat to damage property sufficient for the defence of duress?
No, a threat to damage property is not enough.
What must the jury consider in the 2-stage test for duress?
Firstly, was the defendant compelled to act due to a reasonable belief of fear of death or serious injury? Secondly, would a sober person of reasonable firmness, sharing the characteristics of the defendant, have responded in the same way?
Example: Graham
What is the subjective test in the 2-stage test for duress?
Was the defendant compelled to act because they reasonably believed they had good cause to fear death or serious injury?
Example: Cairns
What is the objective test in the 2-stage test for duress?
Would a sober person of reasonable firmness, sharing the characteristics of the defendant, have responded in the same way?
Example: Bowen
What characteristics of the defendant can be considered in the objective test?
Characteristics such as mental illness, disability, age, gender, and pregnancy can be considered, but not low IQ or addiction.
Examples: Bowen, Flatt
What must the threat be in terms of timing for the defence of duress?
The threat must be imminent, although not immediate.
Examples: Abdul-Hussain, Hudson and Taylor, Shayler
What must not exist for the defense of duress to apply?
There must not be a safe avenue of escape, such as going to the police.
Example: D did not have a safe avenue of escape such as time to call the police, and had to act there and then.
Is duress a defense if it is self-induced?
Duress is not a defense where it is self-induced.
Example: D was a member of a criminal gang and so he cannot use the defense of duress by threats as the duress situation was self-induced.
What may happen if the defense of duress by threats applies?
D may be found not guilty.
