DURESS - GENERAL DEFENCE (paper 1) Flashcards
1
Q
background info
A
- common law defence
- not available for all crimes (murder/attempted murder)
- excusatory defence
- pressure defence
- results in acquittal
2
Q
Duress by threat
A
- through direct threats from another
- deliberate threats made to have the defendant commit the crime
3
Q
Duress of circumstance
A
- threats from external circumstances
- involves dangerous situation and D committing a crime to avoid the dangerous situation
4
Q
elements/requirements
A
- same elements for both types of duress
- one extra element for duress of threat
- (1) the nature (type) of threat
- (2) limitations (when not available)
- (3) the 2 part Graham test
5
Q
Duress by threat only - the crime must specify/state the crime
A
case of Cole;
- threat = get me money you owe, or i will hurt you
- he robbed a building society meaning duress is not available as the threat wasn’t to rob buildings
- threat didn’t specify the crime
6
Q
Element 1A - nature of threat
A
- threat must be of serious PI/death
- threats to expose secual impropriey or finacial irregularity (valderrama Vega) not enough on own but taken into consideration id threats of death/ serious PI
- only available if threats of death/PI
7
Q
Element 1B - who is the threat amid at?
A
- threat must be aimed at defendant or someone whom they feel responsible for
- Valderrama Vega - threats to D and family
- Wright - boyfriend
- Shayler - not including threats to public at large
- Conway - passenger in car for duress of circs
- pets are property, not people!
8
Q
Element 1C - Timing of threat
A
- timing of the treat
- threat has to be imminent but not immediate (Hussain and Safi)
- means the treat must be operating on the D’s mind when they commit the crime
9
Q
Element 2A - limitations
A
- duress not available for:
- D’s who fail to take opportunity to escape/report threat (Gill, Hasan)
- D’s who are an active member of criminal gang or associated with someone who may subject them to threats
- not available for murder (Howe, Gotts)
10
Q
element 3 - the Graham test
A
- subjective and objective test
- developed in R v Graham in CA
- R v Howe confirmed it should be used in cases involving ‘duress by threat’
- R v Martin, the CA confirmed that the test should be used in cases involving ‘duress of circumstance’
11
Q
R v Graham
A
- D killed V by putting an electric flex around V’s neck, pulled tight and killed her after drinking heavily
- D claimed he was acting under duress as he had been forced to do it because of threats from K (another household member)
- CA confirmed the voluntary consumption of alcohol/drugs aren’t taken into consideration and the jury will apply the 2 stage test to see if the defence is available
12
Q
The two stages of the test
A
- subjective part - was D compelled to act as he did because he feared death or serious injury?
- Objective part of Graham test - would a sober person of reasonable firmness with shared characteristics of the defendant, have responded in the same way?
13
Q
Case of Shepherd
A
- defence will be available if the def did not know that the gang used violence, when he first joined the gang and was then subjected to threats
14
Q
case of Sharp
A
- defence will not be available if the def knew that the gang used violence when they joined was still an inactive member
15
Q
case of Hasan (2005)
A
- HOL said that the defence of duress is not available if the D had a reasonable suspicion or ought to have has suspicion that the risk that he may be exposed to threats of violence
16
Q
valderrama vega
A
- def involved with smuggling cocaine
- said was forced to do so because of threat of death, serious PI to family threats and expose sexual activity and financial difficulties to wife
- exposing sexual activity or financial difficulties are not substantial enough on own
17
Q
Baker & Ali
A
- defence will not be available id threats were self-induced
- D owed money to a drugs gang + committed a crime when they made threats
- not available as threats was self-induced
- in other words, he brought it on himself
18
Q
R v Howe
A
- not available for murder
- Lord Hailsham - “it is neither good morals, good policy or good law to suggest that the ordinary man of reasonable fortitude, is not supposed to be capable of heroism, if he asked to take an innocent life, rather than sacrifice his own”
19
Q
R v Gotts (1991/2)
A
- 16 year old boy stabbed his mum, said he was forced to do so because of threats ,made by violent and abusive
- his mum lived and he was convicted of attempted murder
- defence not available for attempted murder
20
Q
R v Pommell (1994)
A
- Duress of circumstances
- police found D in bed with loaded gun, said there was pressure to take from another man who said to “do some damage with it”
- defence was available as it wasnt murder or attempted murder
