Paper 1.16b - Duress by Threat Flashcards
Is duress by threats a full or a partial defence?
Full defence, results in an acquittal.
Who is the burden of proof on in the defence of duress by threats?
Prosecution, beyond reasonable doubt.
Who is the defence of duress by threats intended for?
People who are forced to commit crimes due to threats of death or serious injury by others.
The case of AG Whelan commented on the level of threat required to successfully claim the defence of duress by threats. What did it say?
“Threats of immediate death or serious personal violence are so great that they overbear the ordinary powers of human resistance.”
What are the 6 elements of duress by threats?
- Who is the threat to?
- Is it serious?
- Is there a connection between crime and threat?
- Is it immediate?
- Does it satisfy the Graham test?
- Are there limiting factors?
When using the defence of duress by threats, who can the threat be to?
D or others, not property or animals.
In duress by threats, a threat has to be made against d or others. What is meant by others and which case defines this?
Others means people close to d in proximity or relation.
Wright
D and her boyfriend had been threatened, CA awarded the defence despite not being family.
In duress by threats, what constitutes a serious threat? What case defines this?
The threat must be of death or serious injury and must physical.
Valderama-Vega.
In Valderama-Vega, the threat to D was not serious enough to constitute duress by threats. What happened in this case?
D was threatened to import cocaine illegally. His blackmailers threatened to expose D’s homosexuality and inflict harm on his family. CA upheld D’s conviction (as although there was threats of violence) the main sticking point was D’s homosexuality.
In duress by threats, there must be a nexus (connection) between the threat and the crime. What is the case study of this?
Cole
D was threatened to get money for his debts. D did two robberies to get the money. Although d was under duress, they had not told him to rob the banks, so D was convicted.
In duress by threats, the threat must be immediate. What is the case study of this?
Hudson and Taylor
Two Ds, girls, committed perjury due to threats made by another. However, CA stated that police protection would not have been effective because of the threat’s imminent nature, they were awarded the defence.
Abdul-Hussain
Ds hijacked a plane because they believed they would be executed if they got to Iraq. CA quashed convictions as the threats were immediate under the Smith definition.
ALSO Hasan - if d has time to go to the police, they must do so.
In terms of duress by threats, what is the 2 part Graham test?
Subjective - Did d act because he feared death or serious injury?
Objective - Would a sober person of reasonable firmness with d’s characteristics have acted in the same way?
The duress by threats Graham test mentions how “d’s characteristics” are relevant. According to Bowen, what 5 five characteristics are relevant?
Age.
Pregnancy.
Serious physical injury / disability.
Recognised illness.
Gender.
NOT LOW IQ OR BEING TIMID
What are the two limitations to the defence of duress by threats?
Self-induced duress is likely to spoil the defence eg joining a gang.
No defence to murder or attempted murder.
In duress by threats, D has no defence if he foresees or should foresee that there is a risk of threat. What case decides this?
Hasan or Sharp.
What two cases decided that duress by threats is not applicable to murder and attempted murder respectively?
Howe (binding for murder, persuasive for attempted) and Gotts (binding for attempted murder).
