Duress (General Defence)

Question 1

What is duress?

Answer 1

-If a dft has been forced to commit a crime against their will bc of a threat made to them, they may rely on duress.

Question 2

What type of defence is duress? Case and quote also

Answer 2

-Common law
-Full defence, found not guilty
-R v Hasan, Lord Bingham: “defence which exonerates the dft altogether”

Question 3

What is duress not a defence for and the cases that go with these offences?

Answer 3

-Murder: Howe
-Attempted murder: Gotts

Question 4

R v Howe

Answer 4

-D took part in torturing and abusing two men who were then strangled by one of the others
-claimed he took part in killings bc of threats made against him
-Duress is not available as a defence to murder

Question 5

R v Gotts

Answer 5

-16 yr old boy, tried to kill mother by stabbing as claimed father had threatened to shoot him if he didn’t. Caused serious injuries but she survived. Charged w attempted murder
-Duress not available as a defence to attempted murder (followed precedent in Howe)

Question 6

What is the main case for duress? And case facts

Answer 6

-R v Hasan
-D worked for woman who ran escort agency. Drove her to clients. Woman got new bf, took over his work and boasted he committed 3 murders. Him and another ambushed dft, told to commit burglary on house, if not family would be harmed.
-Failed duress on 6th part of test

Question 7

What is the 6 part test established in Hasan?

Answer 7

1. Must be a threat to cause death or serious injury
2. The threat must be directed against the dft or their immediate family or someone close to them
   3.Whether the dft acted reasonably in the light of the threats will be judged objectively
3. The threats relate directly to the crime committed by the dft.
4. There was no evasive action the dft could’ve taken
5. The dft cannot use the defence if they have voluntarily laid themselves open to the threats

Question 8

1. Threat to cause death or serious injury + case names

Answer 8

-Serious injury given normal meaning, equivalent to GBH
-R v Valderrama-Vaga
-R v Hammond
-R v Hudson and Taylor

Question 9

R v Valderrama-Vaga

Answer 9

-D illegally imported cocaine bc of death threats, threats to out him as gay, and financial pressures.
-Cumulative effects of all the threats should be considered by the jury
-If hadn’t been a death threat then other threats not sufficient.

Question 10

R v Hammond

Answer 10

-D walked out of open prison as didn’t think could stop self from injuring prisoner who threatened to sexually assault him.
-Not available as evidence insufficient to show threat imminent or immediately likely

Question 11

What must the threat be at the time?

Answer 11

-Must be effective at the time of the crime but doesn’t mean the threats need to be carried out immediately

Question 12

R v Hudson and Taylor

Answer 12

-Teenage girls, perjury, didn’t identify dft, warned by violent man if they identified him then they would find them and cut them up.
-Lied, saw man in public gallery.
-Court said must be ‘present’ threat, defence put to jury

Question 13

Who must the threat be directed against?

Answer 13

-DFT
-Immediate family
-Someone close to them
-Person who’s safety they would reasonably regard themselves responsible for

Question 14

What are the cases for ‘did the dft act reasonably”

Answer 14

-R v Graham
-R v Bowen

Question 15

R v Graham

Answer 15

-D lived with wife and homosexual lover (K)
-Took drugs for anxiety which made more susceptible to bullying
-K violent and jealous of wife
-After K and dft had been drinking, K put flex around wife’s neck and told him to take the other end and pull, did so for a minute, died
-Pleaded not guilty as only complied due to fear of K
-No defence

Question 16

What is the 2 stage test set out in Graham for if a defence should succeed?

Answer 16

1. Was the dft compelled to act the way they did because they reasonably believed they had good cause to fear serious injury or death?
2. Would a sober person of reasonable firmness sharing the characteristics of the dft have responded in the same way?
   -obj test

Question 17

Bowen

Answer 17

-Jury allowed to take some characteristics of dft into account
-D had low IQ and obtained goods by deception for 2 men, told him they would use petrol bomb on him and family if he didn’t carry out.
-Low IQ irrelevant in deciding if the dft found it difficult to resist any threats

Question 18

What characteristics could be relevant to duress?

Answer 18

-Age
-Pregnancy
-Serious physical disability
-Recognised mental illness or psychiatric disorder
-Gender

Question 19

Did the threats relate directly to the crime committed by the dft? + case name

Answer 19

-D can only use defence if threats made so he will commit specific offence
-Threat/offence nexus
-R v Cole

Question 20

R v Cole

Answer 20

-D and family threatened if did not repay debt, Carried out 2 robberies to get the money.
-Insuff connection between threats and crime so not available

Question 21

Could the dft have taken any evasive action?
-Quote

Answer 21

-Defence only used if d in situation where no safe escape
“Dft may excuse his criminal conduct on grounds of duress only if no evasive action he could reasonably have been expected to take” Lord Bingham
-Immediacy of threat and the possibility of seeking police protection are important

Question 22

What is the case for lack of immediacy and explanation for this

Answer 22

-R v Brandford
-D told by boyfriend he had to supply cocaine and heroin and if didn’t do it then it would be nice. Told her he had been kicked punched and stabbed before. D then agreed to carry drugs with boyf from London to Portsmouth, secreted on person. Police stopped and they were found
-Defence failed due to lack of immediacy

Question 23

What is the case for evasive avenue and whether there is a safe avenue of escape?

Answer 23

-R v Gill
-D claimed him and wife threatened unless he stole lorry. Period of time left alone so could’ve raised alarm. Had possibility of safe avenue of escape so couldn’t rely

Question 24

Laying self open to threats

Answer 24

-D can’t use defence if voluntarily laid selves open to threats eg where join a gang and commits offence but then forced to commit other crimes he didn’t want to commit

Question 25

Cases for laying self open to threats

Answer 25

-R v Sharp: Joined gang who did robberies. Wanted to leave when saw armed with guns but threatened to kill. Took part in robbery where person killed post master. Convicted of manslaughter and appeal dismissed
-R v Shepherd: D joined shoplifting gang, threatened when tried to leave. Didn’t know likely when joined, future shoplifting could have defence but past offences before aware of threat not available.

Question 26

Intoxication

Answer 26

-If D voluntarily intoxicated and mistakenly believes has been threatened then can’t use duress of defence
-If duress irrelevant to intoxication then can still use
-EG if threatened by man when drunk

Question 27

Duress of circumstances

Answer 27

-Circumstances dictate crime rather than a person
-All rules on duress applicable
-Must be circumstance which makes d feel likelihood of death

Question 28

What are the requirement for duress of circumstances?

Answer 28

-Was it reasonable for D to act this way?
-Two part Grahame test must be satisfied
-If safe avenue then this must be pursued
-Must be connection between crime and circumstance
-defence fail if D associated w gangs
-Not applicable to murder

Question 29

What are the 6 cases for duress of circumstances?

Answer 29

-R v Pommell
-R v Cairns
-R v Willer
-R v Conway
-R v Martin
-R v Abdul Hussain

Question 30

R v Willer

Answer 30

-D and passenger driving down alley, car surrounded by gang. They didn’t threaten but situation was threatening
-Drove slow on pavement to get away, charged w reckless driving.
-Court allowed appeal for reckless driving bc jury should be allowed to consider whether drive under duress

Question 31

R v Conway

Answer 31

-Passenger in D’s car had been shot at by 2 men before. Saw 2 men running towards who he thought were men but actually police in normal clothes
-Yelled to drive off fast
-D charged with reckless driving
-Judge refused to leave defence to jury and D convicted
-Court decided that defence available if obj standpoint and acting to avoid death.

Question 32

R v Martin

Answer 32

-D’s wife threatened suicide unless drove her son to work who was late and risk of losing job
-D disqualified from driving but drove him to work
-Convicted driving while disqualified
-Appealed and held that duress of circumstance could be available. Same two part test as for duress by threats applied.

Question 33

What is the two part Martin test?

Answer 33

1. From objective point of view, D acted reasonably and proportionately to avoid threat of death or serious harm and
2. Two part Grahame test applies

Question 34

What is the two part Grahame test? (Duress of threat)

Answer 34

1. Was the dft compelled to act the way they did because they reasonably believed they had good cause to fear serious injury
2. Would a sober person of reasonable firmness sharing the characteristics of the accused have responded in the same way?
   -Subj test with obj element

Question 35

R v Pommell

Answer 35

-D found 8 am with sub-machine gun. Told police at 1am took from man going to do some damage.
-Said going to get brother to hand in
-Denied opportunity to put defence to the jury
-COA confirmed defence available for all but murder and attempted
-conviction quashed

Question 36

R v Cairns

Answer 36

-V threw self across bonnet
-Several of V’s friends shouting and D felt threatened
-Drove off with V on bonnet
-Friends actually trying to help not threaten
-V fell under car and injured
-D’s conviction quashed as perceived threat of serious injury

Question 37

R v Abdul Hussain

Answer 37

-D’s Muslims, fled to Sudan from Iraq bc of religion and risk of execution
-Feared would be sent back to Iraq when land
-Hijacked plane and landed in UK
-D’s charged w hijacking’s and pleaded duress of circumstances
-Judge said danger not suff close and immediate to give rise to virtually spontaneous reaction
-COA quashed, threat doesn’t have to be immediate, only need imminent in sense of hanging over

Question 38

Necessity

Answer 38

-Similar to DOC
-Choice of two evils, the evil represented by committing the offence is outweighed by the greater evil which would happen if offence not committed.

Question 39

What are the 3 cases for Necessity?

Answer 39

-R v Dudley and Steven’s
-Re A (conjoined twins) 2000
-R v Shayler

Question 40

R v Dudley and Steven’s

Answer 40

-Defence put by shipwrecked sailors who ate cabin boy to survive, charged with murder
-Must be circumstances which force people to act to prevent worse evil
-No defence of necessity as didn’t have to be the cabin boy

Question 41

Re A (conjoined twins)

Answer 41

-Doctors sought declaration it would be lawful for them to operate to separate conjoined twins, one would die if did so but both would die if didn’t.
-Defence necessity available as a defence even to potential charge of murder.

Question 42

What was held in R v Shayler by COA that the tests for DOC or Necessity were:

Answer 42

-Act must only be done to prevent greater evil
-Act must be directed towards the dft or a person for whom they were responsible
-Act must be reasonable and proportionate to the evil avoided