General Defences - Duress

Question 1

DPP v Gleeson [2018] (SC)

Answer 1

• Charleton J:
  Nature of the Threat:
• AG v Whelan - “Threats of immediate death or serious personal violence so great as to overbear the power of ordinary human resistance”; Not murder - So heinous a crime; Opportunity for will to re-assert itself = no duress
• Threat needs to be immediate and actually present when crime committed – Lynch v DPP for NI
  Test:
• Duress is only available as a defence to an accused on three conditions which are based on reasonableness. These are that:
  1. He or she reasonably believes that a threat has been made that will be carried out unless an offence is committed; and
  2. There is no reasonable way that the threat can be rendered ineffective; and
  3. The conduct is a reasonable response to the threat.
• “Lord Bingham in R v Hasan - Duress elements = a threat of death or serious injury; the threat must be directed against the defendant or his immediate family or someone close to him or her, or to someone for whose safety the accused reasonably considers himself or herself responsible; Other already said stuff
• Take account of opportunities to access the protections of civil society through the police or other authority e.g. Bank robbery
• Exclude criminal gang participants
  Rationale:
• Ashworth - Balance accused and society
• Society - Adherence to the law
• Smith et Al = Sex, age, other characteristics that affect gravity of threat to accused
• Other authorities – “Pregnancy and serious physical disability, together with a recognised mental illness or psychiatric condition such as post-traumatic stress disorder
• Current case – Circumstances of the accused’s job (prison officer and had a family) rather than personal characteristics and opportunities to contact lawful authorities not taken
• If appropriate case arose, would consider threat to property; irreplaceable works of art embodying the human spirit like the Ardagh Chalice or the Book of Kells