The rest of Duress of Threats Flashcards
In deciding whether the defence should succeed, what must the jury consider?
a two stage test
What is the two-staged test which decides whether the defence should succeed?
1) Did D reasonably believe he had good cause to fear serious injury or death?
2) Would a sober person of reasonable firmness, sharing the same characteristics have responded the same
In what case was the two stage test which the jury must consider laid down?
Graham
What case approved the two stage test in Graham? used to decide whether D should succeed
Howe
What happened in the case of Graham?
D helped his violent partner murder V, D’s wife, as he claimed he was under duress. However D had helped lure V to the house after drinking. Conviction for murder upheld
D helped his violent partner murder V, D’s wife, as he claimed he was under duress. However D had helped lure V to the house after drinking. Conviction for murder upheld
What case is this?
Graham
What is the first part of the subjective test
1)Did D reasonably believe he had good cause to fear serious injury or death?
the first part of the test is based on whether the defendant did the offence because of the threats he believed had been made
What made the first part of the two stage step process for the jury partially objective?
the fact that an ordinary person would have believed it
In what case did the COA interpret the subjective part of the two stage test as being whether D may have reasonably feared for his safety ?
Martin
What does it mean for D that the COA have interpreted the subjective part of the two stage test in Martin as being whether D may have reasonably feared for his safety?
this means ta any characteristic of the defendant which may have made him more likely to believe the threats would be taken into consideration.
What happened in the case of Martin DP?
D suffered from a medical condition which would lead him to regard things said to him as threatening. He claimed he was forced to commit two robberies. Trial judge said his condition was irrelevant for the first part of the test (Did D reasonably believe he had good cause to fear serious injury or death?) but could be a characteristic under the second part of the test. COA allowed appeal and quashed conviction as the defendants mental condition is relevant in deciding whether he reasonably believed that his safety was at risk.
D suffered from a medical condition which would lead him to regard things said to him as threatening. He claimed he was forced to commit two robberies. Trial judge said his condition was irrelevant for the first part of the test (Did D reasonably believe he had good cause to fear serious injury or death?) but could be a characteristic under the second part of the test. COA allowed appeal and quashed conviction as the defendants mental condition is relevant in deciding whether he reasonably believed that his safety was at risk.
What case is this?
Martin DP
The decision made in Martin DP was in doubt following the HOL decision in what case?
Hassan 2005
The HOL decision in Hasan confirmed the decision in what case which held that the defendant’s belief in the threats must be reasonable and genuine which is continued in Hassan?
Graham
What was the decision held in Graham?
that the defendant’s belief in the threats must be reasonable and genuine
What is the second part of the test based on?
2)Would a sober person of reasonable firmness, sharing the same characteristics have responded the same
the second part of the test is based on whether the reasonable man would have responded in the same way
While the second part of the test
2)Would a sober person of reasonable firmness, sharing the same characteristics have responded the same
is based on whether the reasonable man would have responded in the same way, what is the jury allowed to take into account?
allowed to take certain of Ds characteristics into account, as the reasonable man is regarded as sharing the relevant characteristics of the defendant
What characteristics can be taken into account was decided in what case/
Bowen
What happened in the case of Bowen?
D had a low IQ and obtained goods by deception for 2 men who told him they would kill himself and his family. It was found that his IQ was irrelevant n deciding whether D found it more difficult to resist any threats. Only -age -pregnancy, -serious physical disability -recognised mental illness -gender
What were the 5 accepted characteristics which could be seen to make it difficult for D to resist threats under duress?
- Age
- Pregnancy
- Serious physical disability
- Recognised medical condition
- Gender
When can duress only be used as a defence?
when the defendant is placed in a situation where he has no safe avenue of escape
D claimed that he and his wife had been threatened unless he stole a lorry. There was a period of time during which he was left alone and could have raised the alarm. As he had a ‘safe avenue of escape’ he could not rely on the defence of duress.
What case is this?
Gill
What happened in the case of Gill?
D claimed that he and his wife had been threatened unless he stole a lorry. There was a period of time during which he was left alone and could have raised the alarm. As he had a ‘safe avenue of escape’ he could not rely on the defence of duress.
Why did D in Gill not get the defence of duress?
as he had a ‘safe avenue of escape’
When what is available can the defendant not rely on duress?
police protection
In what case was it accepted that police protection might not always be effective?
Hudson and Taylor
What happened in the case of Hudson and Taylor?
Ds were young girls who were threatened with death to lie about identifying a man on trial, charged with perjury but conviction quashed by COA who acknowledged that there was some cases where the police could not arrived effective protection. COA said jury should consider, age and circumstances of the threats.
Ds were young girls who were threatened with death to lie about identifying a man on trial, charged with perjury but conviction quashed by COA who acknowledged that there was some cases where the police could not arrived effective protection. COA said jury should consider, age and circumstances of the threats.
What is this case?
Hudson and Taylor
What case was criticised by the HOL in Hasan due to the fact the availability of police protection should make the defence of duress unavailable?
Hudson and Taylor
When must the threat be in order for the defence of duress to be available?
it must be effective at the moment the crime is committed, but this does not mean that the threats need to be able carried out immediately
Why did the judge in the case of Hudson and Taylor rules that the defence of duress was not first available to the two girls?
this was because the threat could not be immediately put into effect while the girls were giving evidence so there was no reason for them not to have given truthful evidence
In the case of Hudson and Taylor the COA ruled that the threat could not be immediately put into effect and so was not a ‘present’ threat. What did this mean?
that if the threat is hanging over the defendant at the time he or she commits the offence then the defence is available.
What type of case is Abdul-Hussain?
a case on duress of circumstances
What happened in the case of Abdul-Hussain?
Ds fled their country through fear of punishment for their religion. Out of fear they hijacked a plane. Pleaded duress. It was ruled that the danger was not sufficiently ‘close and immediate.’ COA quashed convictions as threat need not be immediate but imminent to the sense it was hanging over them
Ds fled their country through fear of punishment for their religion. Out of fear they hijacked a plane. Pleaded duress. It was ruled that the danger was not sufficiently ‘close and immediate.’ COA quashed convictions as threat need not be immediate but imminent to the sense it was hanging over them
What case is this?
Abdul-Hussain
What 3 things did the COA hold in Abdul-Hussain?
1) Must be imminent peril of death or serious injury
2) The sense of death must be hanging over them
3) Execution of the threat need not be immediately in prospect
How did the COA back their ruling in Abdul-Hussain?
by giving a hypothetical example based on the history of Anne Frank. Under English law, if her family stole a car and fled they would not be guilty on the grounds that the threat was imminent
The defendant can only use the defence if the threats are to make him commit which offence?
the specific offence they were threatened by
What case is an example of when the threat has to make the defendant commit a specific offence?
Cole
What happened in the case of Cole?
D claimed he and his family were threatened for money, as he did not have the money, he committed two robberies. Conviction upheld as he had not been told to commit the robberies. There was not a sufficient connection between the threat and crime committed
D claimed he and his family were threatened for money, as he did not have the money, he committed two robberies. Conviction upheld as he had not been told to commit the robberies. There was not a sufficient connection between the threat and crime committed
What case is this?
Cole
In what type of duress does the case of Cole apply to which decided that there has to be a sufficient connection between the threats and the crimes committed?
duress of threats, not duress of circumstances
How does duress of circumstances differ to that of duress of threats in regards to the offence the defendant commits?
In duress of circumstances, the defence may be used for any offence which is an appropriate response to the danger posed by the circumstances
What case demonstrates a defence of duress of circumstances which reflects that Ds committed a crime which they were not directly threatened to commit?
Abdul-Hussain where the danger was of torture and execution and the offence committed was hijacking
When would a defendant not be able to use the defence of duress while intoxicated?
if D becomes voluntarily intoxicated and mistakenly believes he is being threatened
What is self-induced duress?
this is where D has brought duress on himself through his actions. Such as is D voluntarily joins a criminal gang and commits some offences, but then is forced under duress to commit other crimes he did not want to do
What is the normal rule for self induced duress?
where D is aware that he may be put under duress to commit offences, he cannot use the defence
IN what 2 situations could self induced duress apply?
1) Where D joins a criminal gang he knows is likely to use violence
2) Where D puts himself in a position where he knows he will be likely subject to threats of violence such as criminal activity e.g. drug dealer
What 3 cases are examples of self induced duress?
Sharp
Shepherd
Hasan
What happened in the case of Sharp?
D joined a gang who carried out robberies but claimed he wanted to withdraw but was forced under duress to continue doing them. COA ruled that he could not use duress as he joined the gang knowing they were likely to use violence.
D joined a gang who carried out robberies but claimed he wanted to withdraw but was forced under duress to continue doing them. COA ruled that he could not use duress as he joined the gang knowing they were likely to use violence.
What case is this?
Sharp
What case contrasts that of Sharp?
Shepherd
What happened in the case of Shepherd?
D joined a gang of shoplifters but non-violent. D wanted to stop when they began using violence, but was then threatened with violence that he could not stop. COA quashed conviction as he had no knowledge that the gang was likely to use violence.
D joined a gang of shoplifters but non-violent. D wanted to stop when they began using violence, but was then threatened with violence that he could not stop. COA quashed conviction as he had no knowledge that the gang was likely to use violence.
What case is this?
Shepherd
The rule that duress is not available where it is self induced has been extended to situations where…?
where D associates with violent criminals
In what case did the defendant owe money to a drug dealer and was given the defence of duress when threatened and made to help in the supply of cannibas which was because he knew that becoming indebted to a drug dealer was putting himself at risk of being threatened.
Heath
What happened in the case of Heath?
defendant owed money to a drug dealer and was given the defence of duress when threatened and made to help in the supply of cannibas. This is because he knew that becoming indebted to a drug dealer was putting himself at risk of being threatened.
What did the case of Hasan clear up?
It cleared up the confliction of whether self induced duress could be a defence
What happened in the case of Hasan?
D associated with a violent drug dealer who threatened D to burgle a house for money or harm would come to him and his family. D was unable to steal the money. COA asked did D foresaw the risk of threats. HOL reinstated conviction as those who voluntarily associated with others engaged in criminal activity and foresaw the risk, are no allowed the defence.
D associated with a violent drug dealer who threatened D to burgle a house for money or harm would come to him and his family. D was unable to steal the money. COA asked did D foresaw the risk of threats. HOL reinstated conviction as those who voluntarily associated with others engaged in criminal activity and foresaw the risk, are no allowed the defence.
What case is this?
Hasan
