Duress of circumstance Flashcards
Duress of circumstance
Duress by circumstance is essentially an extension of duress by threat. It has been recognised at common law to provide a defence where there is no direct threat and/or demanded from another party, but the surrounding circumstances create an equivalent overbearing of D’s will.
Case of Willer
D drove his car slowly onto a path in order to escape from a gang of youths who were intent on doing serious injury to him and his passengers. D was charged with reckless driving and tried to raise the defence of necessity. The CC held necessity did not apply. But the CA allowed the appeal allowing a defence of duress, although the CA did not distinguish it as a new form of duress by circumstance. However, this was the implication, the youths did not tell him to drive of the path.
Where was the defence confirmed
The defence was later confirmed in Conway, where D drove dangerously to escape what he believed were two assailants intent on killing his passengers. It was held that Willer amounted to duress of circumstances.
what must D be acting to avoid
Available “only if, from an objective standpoint, the defendant can be said to be acting in order to avoid a threat of death or serious injury”: Conway
The threat must be an extraneous one
Rodger and Rose, where D tried to argue he had to break out of prison as otherwise he would have committed suicide and that was not duress of circumstance.
can a threat that someone else will commit suicide be sufficient?
A threat of suicide by a third party may trigger the defence: Martin: D’s wife who has a history of attempting suicide told the D that she would kill herself if he refused to driver her son to work. D was a disqualified driver but he did as she forced him to do. Although the defence was weak and CA said unlikely to be credible said it should have been left to the jury. But they are clear the analogy with duress means the D must have a reasonable belief in the circumstances giving rise to cause fear, and test of reasonable firmness to be applied in resisting the threat.
Facts of Pommell:
D in possession of a fire arm. D was found in bed with the firearm. Defence that he had taken it from another man who had visited him and had vowed to kill the families of people he said had murdered his brother. D took the gun from him to stop him doing that. Presume the threat was immediate (not sure), assuming it was, the CA held the defence of Duress of circumstance was not confined to driving but a general defence that can apply to everything except murder.
What was held in Pommell
Raises Q whether defence ceases to exist when the threat ceases to become immediate. Court thought it would have to expire at some point, whether Pommel, before Hasan, looked at in light of Hasan lacks the overall situation of immediacy at the time he takes the gun. But if it doesn’t question if keeping it and going to bed with it is covered by the defence, thinking how strict Hasan is about immediacy and seeking alternatives.
Case of Abdul -Hussain
DoC could apply to the crime of hijacking but at that time lenient as to what constitutes an immediate threat and refer to Hudson and Taylor. Doubt on authority suggests that it may well apply to hijacking in a pressing and immediate threat. General defence but will be a narrow one.
Qualye
group of D referred to need to use cannabis as a from of medication. This was to manage pain. Defence disallowed because no extraneous threat, the threat from their own illnesses, and the on-going and chronic pain suffered was not an immediate threat of death or serious injury. CA approves of Hasan, and that it applies to DoC.
CS
a mother who took her child abroad which was contrary to the child abduction act 1984 said doing so to prevent the child from being abused by her father. But that it was said could not be DoC as no evidence of immediate threat.
