ND: Duress By Threats Flashcards
R v Baker
Must be death/serious injury
A threat of psychological injury will not suffice
R v Howe
Must be threat of death/serious injury
The threat must be so convincing, a person of reasonable firmness with D’s characteristics would have given in
R v Hasan
Must be threat of death/serious injury; Imminence
The threat must be objectively reasonable and subjectively genuine
The threat must be, or believed to be, immediate or almost immediate
R v Bowen
Must be threat of death/serious injury
In considering D’s characteristics, pregnancy, serious physical disability or recognized mental illness may be relevant. Age and gender will be taken into account but not low IQ.
R v Gill
Safe avenue of escape; imminent danger
D had reasonable opportunity/safe avenue of escape to avoid committing the crime and therefore couldn’t rely on duress.
Defence of duress is only available if threat is immediate or almost immediate
R v Hudson and Taylor
Safe avenue of escape
Duress can apply even if the threat is not immediate, as long as the threat is effective and there’s no realistic safe avenue of escape
R v Quayle
Threat must be effective and operational
Threat must be ‘an imminent danger of physical injury’
R v Cole
Nexus
There was no threat or duress regarding the offence D committed
R v Sharp
Voluntary association
D joined a gang who carried out armed robberies
Lord Lane CJ: ‘where a person voluntarily and with knowledge of its nature joined a criminal organization which he knew might bring pressure on him to commit an offence… he cannot avail himself of the defence of duress’
R v Shepherd
Voluntary association
A gang of shoplifters is very different to a criminal organization or gang of armed robbers. The defence was available.
R v Howe
Availability
The defence was refused for murder as one person’s life is not worth more than another’s
R v Gotts
Availability
There was no defence to attempted murder
R v Valderrama-Vega
Type of threat
All threats can be considered it must contain a threat of death/serious injury.
R v Wright
Personal responsibility for another
Persons to whom the threat is made include those outside of immediate family
R v Batchelor
Failure to seek safe avenue of escape
D could have sought police protection over 2.5 years, but didn’t, so threat wasn’t imminent or immediate
R v Branford
Indirect threats
Such threats can be valid, but here, the words were vague and lacked imminency so D had ample time to go to police
Duress by threats plan
The defence operates where the D argues that they were forced to commit a crime due to a direct threat aimed at themselves or a family member to whom they’re responsible.
It is common law based and ‘founded on a concession to human frailty’, where a person’s will is overcome by threats. So if the D had not been threatened, they would not have committed the offence.
It’s available to all crimes committed by D under duress, other than murder/attempted murder. Application is reluctant as D must prove they couldn’t have walked away or sought help. - R v Howe, R v Gotts
Rules:
- Must be a threat of death or serious injury - R v Baker, R v Howe, R v Hasan, R v Bowen, R v Branford
- There can be a combination of threats, but the threat of death/serious injury must be present and play a major part in D’s rationale for committing the crime - R v Valderrama-Vega
- The threat can include the D, a close family member, or someone they are responsible for - R v Wright
The two-part Graham test established in R v Graham must be satisfied:
1) Was the D compelled to act because they reasonable believed they had a good reason to fear death/serious injury?
2) Would a sober, reasonable person sharing the same characteristics as the D have acted in the same way?
- If there’s a safe avenue of escape, this must be pursued, although there may be exceptions to this rule - R v Gill, R v Hudson and Taylor
- The threat must be effective and operational when the D carries out the crime and the threat of death/serious injury must be ‘an imminent danger of physical injury’ - R v Quayle, R v Hasan
- There must be a nexus between the crime nominated and the crime committed - R v Cole
- The defence will usually fail if D voluntarily associates with people who are known to make threats - R v Sharp, R v Shepherd, R v Batchelor
Apply all…..
Reform:
The Law Commission’s Consultation paper, ‘A New Homocide Act’, in 2005 suggested that this should be a partial defence to murder, followed by their report in 2006 which stated it should be a full defence to murder and attempted murder.
These recommendations were ignored in a Ministry of Justice Report in 2008 where no specific reference to duress by threats in relation to murder was made.
Conclusion - if successful, defence will be available.
