Duress Of Threats Flashcards
What does AG v whelan define a threat as
Threats of immediate death or serious personal violence are so great as to overbear the ordinary powers of human resistance
What must the nature of the threat be
Death or serious injury as in r v Singh where less threats will not be sufficient
Psychological threats are not sufficient baker and Wilkins
Are lesser threats to destroy property sufficent
No
Are threats to expose sexual immorality sufficent
No as shown in valderrama vega
What else does valderrama vega show and case facts
There can be a string of threats to include death or serious injury
Imported cocaine as death threats made and threatened to expose sexuality
Convicted at first instance but conviction quashed on appeal
Who can the threats be to
Yourself of family as stated in Martin
Case law has developed the use of the defence to who
Wife, girlfriend, mother or friends as decided willer and Conway
Who did Wright suggest the defence could be used for
Anyone who’s safety d reasonably regarded himself as responsible
What does r v Cole indicate and facts
D must be told what crime to commit
Moneylenders pressured d for money and threatened girlfriend and children he went and robbed 2 building societies
He was not told to rob so does not have a defence of duress
For d of t d must have been forced to commit a crime under threat of
Death or serious injury
If d voluntarily commits an offence to escape the consequence of threat is duress available
No
There has to be a sufficient what between threat issues and crime
Nexus (connection)
What offences is duress not available for
Murder
Attempted murder
Possible treason
Who is the burden of proof with
Prosecution although d must raise evidence of duress
What is the test for duress
A two stage test laid down in r v graham
Which case confirmed r v graham
Howe and bannister
Case facts of r v graham
Homosexual living with wife and boyfriend, boyfriend told d to hold end of rope to strangle wife
What is section 1a of Graham’s test
D must fear death or serious injury and have good cause to do so (subjective)
What is part 1b of graham test
The belief must be reasonable and genuine (hasan) and the jury must believe that death or serious injury was likely
What is part 2 of graham test
Would a similar, person sharing certain characteristics of d, sober person or reasonable firmness fear death or serious injury (objective)
Must must there be evidence to suggest
That d believed the duressor
What can the reasonable person be given when considering graham test
Certain characteristics of d if it made him more susceptiable to pressure
What do the certain characteristics include
Age Sex Pregnancy Serious physical disability Mental impairment Post traumatic stress disorder
Which case indicated post traumatic stress disorder could be considered
Bowen
A personality disorder can not be taken into consideration or any other recognised mental illnesses as decided in
Hegarty
Excessive vulnerability or timidity can not be taken into consideration which case
Bowen h
Why can timidity not be used
Because the reasonable person must have reasonable fortitude
Low IQ can not be considered which case and why
Bowen
Because it doesn’t make d less courageous or less able to withstand threats
Which case said intoxication can not be used
R v flatt
What did the draft criminal code want to do with the graham test
Put it on a fully subjective
Which case indicated that there must be no safe way out
R v Gill
D was told to steal lorry but he was left alone where he could have had time to raise an alarm
Which case stated d must seek police protection as soon as possible
R v pommels
Which case said it is not acceptable for d to choose not to seek police protection because they feel it is inadequate
R v hasan
Under old law any threat had to be imminent if not immediate which case
Hudson v Taylor
What time scale does current law allow
Immediate or almost immediate in r v hasan
Which case indicated that if d voluntarily becomes involved in a gang knowing the crimes may be committed and then wants to rely on duress he will not be able to
R v sharp
What will the situation likely to be when d can not rely on duress when part of a gang
If he voluntarily became involved in the gang
He knew the nature of the gang
And realised that the other gang member might pressure him into committing an offence
If d joins in all innocence may he have access to the defence
Yes as indicated in r v Shepard
What did r v Ali indicate
Extended the principles from r v sharp to include a person of violent nature
In r v hasan what did the law lords indicate regarding gangs
Duress in not available when d could have foreseen that she or he might be forced to commit an offence by being subjected to threats from a gang or individual
Which case decided that in murder duress is not available regardless of whether d was the killer of the secondary party to murder
R v Howe
Which case said duress had been a defence for accessories to murder
Lynch v dpp
