Necessity Defences: Duress Flashcards
What is duress
- a full common law defence
- if D has been forced to commit a crime because of threats they MAY not be guilty
- cannot be used against murder/attempted murder (R v Howe)
What are the two types of duress
- either through a direct threat by another (duress by threats)
- or through external circumstances (duress of circumstances)
What is the definition of ‘duress by threats’
- a common law defence whereby someone commits a crime because they were subject to threat of death or serious injury
How to apply duress by threats to a scenario
D -did person act due to being threatened
U - under same instances, would a person act the same (R v Graham)
R - risk (threat) of death or serious injury?
E - escape/evasion must have been taken if possible
S - specific to the crime
S - subjecting oneself to possible threats e.g. through gang associations etc
What is the case law for ‘E - escape/evasion must have been taken if possible’
R v Gill
What is the case law for ‘S - specific to the crime ‘
R v Cole
What is self induced duress
- where D has brought the duress on himself through his own actions, e.g. if D voluntarily joined a criminal gang + is forced to commit crimes under duress
- case law - Hasan (2005)
What is duress by circumstances
- D believes he, or those with him, would suffer death or serious injury if he did not act by doing what he did
- this defence is available where on an objective standpoint, D was acting in order to avoid a threat of death/serious injury
What is the test for duress of circumstances
Established in graham:
- was D compelled to act as he did because he reasonably believed he had good cause to fear death/serious injury
- if so, would a sober person of reasonable firmness, sharing the same characteristics of the accused have responded the same
