durress Flashcards
Q: What is the defense of duress?
A: Duress is a defense found in common law, where pressure gives rise to a complete defense leading to an acquittal when a defendant acts under threats.
Q: What are the two types of duress?
A: 1. Duress by threats (Graham).
2. Duress arising from circumstances (Willer, Conway, Martin).
Q: What must the threat involve for the duress defense to apply?
A: The threat must involve death or serious bodily harm (Graham, Valderrama-Vega, Martin).
Q: What standard test governs the application of duress?
A: The test established in Hasan.
Q: Who must the threat be directed at for the defense of duress to apply?
A: The threat must be directed at the defendant, their immediate family, or someone close to them (Hasan, Wright).
Q: Is there a defense if there was an opportunity to escape or evade the threat?
A: No, if there was an avenue of escape, duress is not a defense (Gill).
Q: What is the 2-stage objective test in duress?
Was the defendant compelled to act because they reasonably believed the threat? (Subjective, Safi).
Did they behave like the “sober person of reasonable firmness”? (Objective, Graham, Bowen).
Q: What characteristics can be considered in the objective test of duress?
A: Age, gender, serious physical disability, pregnancy, and fear for safety of unborn child (Bowen).
Q: When can duress not be a defense regarding the defendant’s associations?
A: If the defendant voluntarily associates with a gang knowing their propensity for violence, duress cannot be used (Sharp, Hasan).
Q: Can duress be used as a defense in murder or attempted murder cases?
A: No, duress cannot be used as a defense for murder or attempted murder (Howe, Gotts, Pommell).
Q: What is the defense of necessity?
A: A defense similar to duress, where the defendant argues their act was to prevent a greater evil (Dudley and Stephens).
Q: What are the criteria for the defense of necessity according to R v Shayler?
- Act done to prevent greater evil.
- Evil directed at the defendant or someone for whom they are responsible.
- Act must be reasonable and proportionate to the evil avoided.
Q: In what type of cases is necessity commonly used?
A: Necessity is more common in civil cases, such as Re F (sterilization of a patient with learning disability) and Re A (separation of conjoined twins).
