General defences - duress Flashcards
Is duress a full defence?
- Is a COMPLETE defence to all crimes apart from murder, attempted murder and treason
Test for duress by threats
- R v Graham and R v Howe & Bannister
1. Was D forced to act as he did because of a reasonable fear of death or serious injury?
2. Would a sober person of reasonable firmness, sharing D’s characteristics, have responded in the same way?
Element 1 of duress - seriousness of threat (3)
- R v Graham; R v Hasan
o Must establish a threat of death or serious personal injury - R v Van Dao (Vinh)
o Three workers in cannabis factory and convicted if cultivating cannabis. Ds argued they were locked in factory with no means of escape and work they carried out was under duress. Found with mobile phones and keys to the building so the claim to duress was fanciful.
o Threat of false imprisonment without fear of death would be insufficient. - R v Valderrama-Vega
o The threats must cause D to commit the crime but need not be the sole cause
o D was charged with offence relating to illegal importation of drugs. Pleaded duress in three grounds 1. threat of death 2. threat to disclose homosexuality 3. He needed money for the drugs gang. It was wrong to direct jury that death threats must be only cause of crime. Even though 2nf and 3rd reason would have been insufficient on own, because coupled with threat of death, they were taken into account to satisfy duress offence.
Element 1 of duress - threats against whom? (2)
- R v Ortiz
o ‘Threats to himself or another’ - R v Hasan
o The threat must be directed at D or ‘his immediate family or someone close to him or for whom he is responsible’
Element 1 of duress - imminent harm (3)
o The threat must be imminent harm so that D could not reasonably be expected to take evasive action
- Hudson & Taylor
o two teenage girls committed purgary whilst giving evidence in trial against violent gang. Had witnessed crime taking place and failed to identify perpetrator of crime – lied in court. They claimed another member of drugs gang had threatened to ‘cut them up’ if they identified the perpetrator in court room. members of gang including the one who made threat in the public gallery at time of trial
o Was essential that threat must be present at the time. Lenient approach – yes the threat may not have happened in the court room, but the gang could have acted in the threat outside on the same night.
o Imminency given lenient approach
o The threats were likely to be no less compelling because their execution could not be effected in the court room, if they could be carried out in the streets the same night.
- Abdul Husain
o Group of shire Muslims who hijacked plane to London. Fled from Iraq to live in Sudan through fear of government persecution and deportation back to Iraq. On appeal against convictions for hijacking plane, they claimed they acted under duress.
o CofA held that although fear of violence was imminent rather than immediate.
o The significant factor was whether the threat had operated on their minds at the time of the offence so as to overbear their will – lenient approach as it had to be imminent not necessarily immediate.
- Hasan
o Language changed from imminent to immediate
o Overruled the previous lenient decisions of Hudson and Abdul
o Is this too strict an objective approach?
Element 1 of duress - reasonable and/or genuine belief in threat (4)
- Safi & Others
o The threat need not exist in fact so long as D reasonably belives that it does – honest belief in threat
o Must have good cause to fear that death or serious injury would follow
o Subjective test limited by two objective elements ( reasonable belief and good cause for belief) - Brandford
o Threat may be conveyed to D indirectly
o However, more indirect the threat is, the less imminent the threat will be so harder to argue duress - R v Martin (David Paul)
o Belief had to be genuine but did not have to be reasonable
o D was a paranoid schizophrenic who appealed against two robberies on grounds of duress. He had been threatened by two men. Psychiatric evidence given at trial that condition made him more likely to believe that he had been threated and the threats would be carried out. At trial, the judge directed jury that they must assess belief in threat to what a mentally healthy person would have believed. CofA held that this direction was wrong and the law should be the same as that of self-defence – D should be judged on facts as he perceived them to be. - Hasan
o Stressed belief had to be both genuine and reasonable
Element 1 of duress - nominated crime (1)
- R v Cole
o There must be a connection between the threat and the crime committed – did the duressor nominate that specific crime
Element 2 of duress (3)
- Graham
o D is required to display the steadfastness reasonably expected of the ordinary person in his situation
o Threat must eb one that would overcome the will of the ordinary person of the age and sex of D, sharing such of D’s characteristics as would affect the gravity of the threat to him
o Objective approach - R v Bowen
o Characteristics taken into consideration: age, sex, pregnancy, serious physical disability, recognised mental illness or psychiatric condition
o Low IQ not taken into account - R v GAC
o An accused would have to have suffered from battered woman syndrome (BWS) in a severe form to be in a position where their will was overborne
o BWS not taken into consideration if it is not severe enough to lose free will
Limitations of duress defence - voluntary association/self-induced duress (5)
- Hasan
o Defence of duress will fail where D associates with others whom he knew or ought to have known might subject him to compulsion by threats or force (self-induced duress) - R v Fitzpatrick
o Voluntary association with IRA meant voluntary exposure to compulsion to participate in robberies etc so could not raise a defence - R v Sharp
o Voluntary association with a gang – no defence
o Knew may be subjected to compulsion. By threats when associating with gang - Baker & Ward
o D must be aware of the risk of being subjected to pressure by way of violence to commit offences of the type alleged
o Subjective approach – D only aware he would be forced to supply drugs but did not know he would be forced to commit other crimes - Hasan
o Broad approach of Baker rejected
o USE THIS TEST IN PQ:
The defence of duress is excluded when as a result of the accused’s voluntary association with others engaged in criminal activity he foresaw or ought to have foreseen the risk of being subjected to any compulsion by threats of violence
o Above is Lord Bingham’s strict approach
o Dissenting Lady Hale – a risk of being exposed to unlawful violence was not enough – the risk should be one of duress not just any compulsion
o Lady hale recognised that strict approach by Lord Bingham has potential to exclude domestic abuse victims from raising duress defence as likely they will know they are exposing themselves to risks of violence but may not know they are exposing themselves to commit actual crimes
Limitations of duress defence - scope of the defence (5)
- Duress is not a defence to murder, attempted murder and treason
- Lynch v DPP for NI
o Duress is available to second party to murder
o D was threatened with violence unless drove IRA gunman to place where policeman was to be shot. D did drive the gunman. D claimed he believed he would have been killed if he did not do it. - Abbot v R
o Duress not a defence to principals to murder - R v Howe & Bannister
o Duress is no defence to murder no matter your degree of participation.
o One who sacrifices another’s life instead of his own cannot claim to be acting to do the lesser of two evils. - R v Gotts
o Duress no defence to attempted murder - R v Wilson
o Criticised Gotts decision
o There might be grounds for criticising a principle of law that did not afford a 13-year-old boy any defence to a charge of murder on the ground that he was complying with his father’s instruction, which he was too frightened to refuse to obey.
Reform for duress (3)
- Law Commission 1993
o Recommended duress be available to both murder and attempted murder charges - Law Commission 2005
o Suggested duress made available as partial defence to murder - Law Commission 2006
o Suggested complete defence of duress to murder, manslaughter and infanticide as the law should not stigmatise a person who kills on a genuine and reasonable belief for fearing death or life-threatening injury in circumstances that a jury are satisfied an ordinary person would have acted in the same way
Critical commentary for duress (4)
- Arenson (should duress be a defence for murder)
o Refusing to allow duress to be used as a defence to murder is seriously flawed
o It is unrealistic to expect of any person to refuse to follow a direction to take an innocent life when consequence of that refusal is certain to result in the loss of own life or close friend/family member - Gardner (duress as defence to attempted murder)
o Decision in Howe that duress is no defence to murder has been undone in subsequent cases and the decision was ill-judged
o Duress being no defence to murder fails to recognise the moral implications of this decision – those who murder out of duress should not be expected to be treated the same as all other murderers - Loveless (duress defence for BWS)
o BWS ignores women who do not display learned helplessness – this poses an additional obstacle to them that is not applied to men on duress scenario - Edwards (gender bias in duress defence)
o The reasonable person standard does not consider abused women – therefore a strict objective approach restricts women from raising the defence
o In more novel cases such as women in domestic violence, a more subjective approach should be taken
o There is a higher threshold for women to raise a defence than for men – defences are crafted on male experience
o Should there be a separate defence available for domestic abuse victims – how would we find this balance
