The Defences of Duress By Threats & Duress By Circumstances

Question 1

Intro:

Answer 1

Both duress by threats and duress by circumstances are considered a full defence to any crime that doesn’t involve murder or attempted murder.

They’re both common law defences, which use the 6-part test determined in R v Hansen.

Question 2

Part 1 - Threat of death and serious injury:

Answer 2

Threat must be made to a person, not property.
It must be sufficiently serious, for example, threatening to punch the D is not enough.

Question 3

Part 2 - to D or someone close to D:

Answer 3

This can be a family member, but does not have to be related to the D.
General test is whether the D believes they owe a responsibility to.
Can include “strangers”, though it’s not that simple.

Question 4

Part 3 - D’s belief and response is reasonable:

Answer 4

● Test is OBJECTIVE with some SUBJECTIVE elements
● Question for the jury: would the reasonable person have responded as D did?
● To answer that question SOME characteristics of the D can be given to the ‘reasonable man’
● For example, if D is a parent and the threat is to their child; if D is very old
● UsecaselawtoguideyouasnotALLofa D’s characteristics will be accepted

Question 5

Part 4 - D’s crime is direct result of threat:

Answer 5

The threat must be directly linked to the crime D commits.
For example: “I will shoot you if you don’t rob the bank”. If D robs the bank, there is a direct link to the crime, but if D steals a car, there is no direct link.
If D is threatened over debt, but not told to commit a specific crime, part 4 AUTOMATICALLY FAILS.

Question 6

Part 5 - D could not take evasive action:

Answer 6

● Could the D have called the police?
● Ask: ‘was the threat imminent’? If the answer is no, the defence MAY fail as D could have done something about it
● If there is a significant time lapse between the treat and the crime being committed (a day, or more), this would NOT be imminent

Question 7

Part 6 - it was not self-induced:

Answer 7

● This prevents a D relying on the defence where they voluntarily put themselves in a situation whereby they could be subjected to threats to carry out crimes
● For example, if D has CHOSEN to become a member of a criminal/violent gang, the defence will not be available. D must know it is criminal/violent.

Question 8

Duress of Circumstances - threat to D must come from the circumstances they are in:

Answer 8

D must be able to show that the circumstances they are in are such if they did not commit the offence at that time, they, or someone close to them, would be in danger of death or serious injury

Question 9

Duress of Circumstances - Apply the 5 remaining parts of the test in Hasan

Answer 9

● Threat is to D or someone close to them
● D’s belief in the threat AND response to it must be reasonable
● Crime D commits must be directly linked to the threat
● D does not have time to take evasive action
● The threat was not self-induced