Duress of Threats

Question 1

What is DoT

Answer 1

D has committed an offence, but he has done so because he was threatened by X with death or serious injury. So, while we do not agree with the conduct

Question 2

How has DoT developed

Answer 2

The defence has developed at common law, and remains uncodified

Question 3

What is the argument by Bingham in Hasan about the restrictions placed on DoT

Answer 3

Bingham: where courts making policy choices about the elements of the defence, will tighten the defence rather than relaxing it. Bingham argues if feel sorry for person under duress, the way to help is give a reduced sentence after convicted, rather than to give them a defence. The courts are tough

Question 4

What does Hale argued about DoT in Hasan

Answer 4

Duress by threats is a defence capable of being manipulated by criminals, in particular gang members and terrorists: ‘readily raised by the least deserving of people but difficult for the prosecution to disprove’. (Baroness Hale)

Question 5

What are the two questions for the jury

Answer 5

1) Was the defendant compelled to act because, as a result of what he reasonably believed the coercer had said / done, he had good cause to fear that he would otherwise be killed or seriously injured?2) Have the prosecution made it clear that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded in the same way? (Graham (1982) 74 Cr App R 235, approved in Hasan)

Question 6

What must the threat be

Answer 6

To found a plea of duress the threat relied on must be to cause death or serious injury’ (per Lord Bingham, obiter, in Hasan)

Question 7

Which case said lesser threats will not do

Answer 7

R v Singh: a threat to expose morality

Question 8

Threats to expose sexual immorality

Answer 8

Valderama Vega

Question 9

Threats of imprisonment are not sufficient

Answer 9

Dao: D caught in a cannabis factory. But he claimed to have been locked in and forced to work there, although weak evidence. CA thought because evidence weak the conviction was safe, but said there would have been strongly disinclined to accept a threat of false imprisonment could ever suffice.

Question 10

Threats of physiological harm insufficient

Answer 10

Baker: - the CA refused to extend the scope of the defence to cases where D feared serious psychological injury.

Question 11

Would rape suffice

Answer 11

Yes

Question 12

Does the perceived threat need to be real?

Answer 12

Perceived threat need not exist provided D reasonably believes it to: Safi

Question 13

Facts of Safi

Answer 13

a defence of duress of circumstances, the same rules apply as they do to duress. These D in this case hijacked an aircraft fearing they would be killed or tortured if they stayed in Afghanistan. P said there must be proof of a threat, but CA held no, as long as D reasonably believes that such a threat exists the formula used in Graham. Graham obiter but shows the line the courts taking, the same view in the HL in Howe.

Question 14

Suggestions that the test to mistake should be subjective in what case?

Answer 14

Martin (David): The D committed two robberies and claimed he was under duress. But may have been mistaken, he had an illness that made him more likely to perceive threats. The CA upheld his conviction but there are dicta in the case saying that a subjective honest mistake would have been better.
Rogers: went further, duress of circumstances case where D was drunk driving but he said it was to escape from a threatening neighbour. Judge Brooke, said the test for mistake was a subjective test and honest mistake was enough and that Graham was wrong. Bold in the sense that he should have been bound by what had been said earlier as in the divisional court.

Question 15

Where was the objective test favoured

Answer 15

Hasan although this was obiter

Question 16

Test for a person of reasonable firmness

Answer 16

-Graham: public policy requires D display the steadfastness of the ‘ordinary’ and ‘sober’ citizen in his situation. Reasonable firmness is a sober person, but can take into account other characteristics.

Question 17

Facts of Hurst

Answer 17

D was a young woman who imported cocaine. She said she was under the influence of her ex and there was clear evidence that she had suffered abuse as a child and was unusually submissive. CA thought this amounted to saying that she was incapable of displaying reasonable firmness, so as long as an objective element to the standard, cannot see how person of reasonable firmness can be associated with person who lacks reasonable firmness. Objective test she cannot satisfy.

Question 18

test from Hurst

Answer 18

an objective test, the reasonable person should not be invested in characteristics of a personality which lacks reasonable firmness

Question 19

Bowen

Answer 19

relied on his low IQ which made him vulnerable. The court held that the mere fact of being more pliable, vulnerable, timid or susceptible to threats not generally relevant, you cannot rely on personal factors which simply go to make you more pliable or susceptible to threats. Increased susceptibility due to self-induced abuse (through alcohol or drugs) not relevant.

Question 20

In Bown what was it held that D could rely on in terms of characteristics

Answer 20

• But increased susceptibility due to age, (possibly) sex, pregnancy, serious physical disability, recognised mental illness or psychiatric condition may be relevant.
  Baroness Hale in Hasan, describing herself as a ‘reasonable but comparatively weak and fearful grandmother’

Question 21

Emery

Answer 21

PTSD and learned helplessness being relevant characteristics so tension to how far one can go in reasonableness.

Question 22

Martin (David)

Answer 22

Mental illness and injured leg. CA thought both were relevant to the question to go to the jury.
CA approved direction including the following in relation to duress of circumstances:

Question 23

Why is DoT more circumscribed than self-defence?

Answer 23

Duress is more circumscribed than self-defence, probably because in self-defence the force is directed at an aggressor, which is not a wrongful choice, but in duress cases V is an innocent third party – usually D makes a (coerced) decision to do wrong.

Question 24

Who must be the target of the threat

Answer 24

The target of the threat must be D or ‘someone for whose safety [D] would reasonably regard himself as responsible’ (dictum of Lord Bingham in Hasan; Brandford

Question 25

Facts of Brandford

Answer 25

Carrying drugs for boyfriend as lives of him and her family had been threatened and they had already murdered A’s close friend. CA accepted a threat to boyfriend (a), would be sufficient to come within the test, but disallowed the defence as appeared acted more out of loyalty or love for A, rather than the fear of threat. The class of person not too narrowly restricted.

Question 26

Why has it been argued that it shouldn’t matter who the threat is against

Answer 26

Should this be a condition at all? If go into a bank and told to empty the till or kill cashier, if this rule means D not covered if cashier is a stranger seems to be counter intuitive. LC have said in reports in 1993 that it should not be a condition, rather part of general test of reasonableness that should go the jury.

Question 27

Case for the crime must be told

Answer 27

Cole: moneylenders pressured D for money. The threatened D, his girlfriend and his child. He robbed 2 building societies. To a charge of robbery he pleaded duress but the defence was not available. The duressor has not told him to commit a robbery.

Question 28

Does the threat of death or SI need to be the sole reason for acting?

Answer 28

Valderrama-Vega: D subjected to range of threats included violence but also threat to expose sexuality. The latter threat does not count, the court said he must be motivated at least in part of the threat of violence.

Question 29

What must the threat be in terms of time scales

Answer 29

immediate and unavoidable: Hudson v Taylor

Question 30

Facts of Hudson v Taylor

Answer 30

until recently the courts took a more generous view. This used to be the leading case. Girls committed perjury in court when gave evidence, they explained that threatened with serious injury and the man who threatened them was in court watching them. CA said this could be duress as this threat could have been carried out later that day, it was real threat. P argued not while in court, they could have sought official protection, but court held this was a matter for the jury to decide.

Question 31

Where was Hudson disapproved of

Answer 31

In Hassan Bingham expresses disapproval of Hudson. Must be firm and firm rule if threat not immediate or if D could and should have sought protection the defence is not open to him.

Question 32

Which case shows the lower courts have found the doctrine from Hasan of immediacy of threat less than pursuasive

Answer 32

Rahman: question left to jury where given drugs to sell. Although he didn’t sell them he didn’t go to the police about it. On strict application of Hassan guilty as other options, but in real world police can’t protect D indefinitely so it must be reasonable to have such a rule which gives more allowance.

Question 33

Case of Batechlor

Answer 33

Batchelor: D has submitted fraudulent VAT claims, before trial said under duress from criminal in Monaco but had been to UK and had opportunity to go the police, so needs to be restriction, but ask the jury in borderline cases.

Question 34

D must not be at fault by associating with who?

Answer 34

D must not be at fault in associating with the source of the duress: Hasan

Question 35

Facts of Hasan (association)

Answer 35

committed two burglaries under duress form violent criminal whom he had dealings with in the past. HL: lost entitlement. Test is strict and objective in the sense that if the D has become or remains associated with others engaged in criminal activity and this is such he knows or ought reasonably to know that he may be the subject of compulsion then he loses.

Question 36

Hasan association LP

Answer 36

Use of the defence is lost if the D “voluntarily becomes, or remains, associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates”

Question 37

Which case disapproved of Hasan in regards to association

Answer 37

Baker & Ward: (adding gloss that it be a criminal offence ‘of the type’ committed) disapproved by HL in Hasan. Should be able to foresee the type of crime.

Question 38

What view did baroness hale take to association

Answer 38

If D has surrender his will to criminal friends then he can’t pick and choose what manner exploit. Barroness Hale dissented and wanted something more in line with Baker, example of batter woman who stays with violent partner, would she lose the defence if he made her commit a crime? This seems wrong.

Question 39

Case of Ali (association)

Answer 39

D associated with X who he knew carried a knife which was enough to lose him the defence, should have foreseen consequences of bad company.

Question 40

Does Duress apply to murder?

Answer 40

Duress does not apply to murder (whether as principal or secondary party): Howe [1987] AC 417 (overturning the distinction between the two drawn in DPP v Lynch

Question 41

Facts of Howe

Answer 41

Howe: however, participate you cannot raise duress. A group of men including H and the duressor M, committed two violent murders. H was technically a secondary party, although took part it was not him who struck the final lethal blow.

Question 42

Case for principle offender

Answer 42

Burke: D convicted as principle offender after shooting police officer on orders of duressor. HL said no distinction between modes of participation.

Question 43

Case for no duress for attempted murder

Answer 43

Gotts: 16 year old boy threatened by father to death unless killed his own mother. The boy attempted to kill her, but he was then convicted of attempted murder to get to the outcome changes argument from sanctity of life, but an argument to MR of the murderer vs the attempted murderer. In attempt the MR is worse, must attempt to kill not mention of GBH, so the evil is there, a man who shoots to kill and misses cannot be justified in acting any more than the man who succeeds as pure chance.

Question 44

Case of Ness

Answer 44

Ness: Duress is available on a charge of conspiracy to murder, following dictum of Lane CJ in CA in Gotts that conspiracy, unlike attempt, is ‘a stage further away’ from the murder and that ‘wherever the line is drawn it would be possible to suggest anomalies’