Duress

Duress

1. Duress can be used as a defence for all crimes, except for murder, attempted murder and possibly treason.

2. Duress by threat

   • This is where another person threatens the defendant with serious violence unless the defendant commits an offence. For example, if an armed man pointe a gun at the defendant and gave him a a fake credit card, and ordered him to use it in a cashpoint machine to get money. The defendant is stealing the money, but he is only doing it because of the threat.
     • Seriousness of the threat
       • The threat must be of death or serious injury, lesser threats do not provide a defence - R v Valderrama-Vega
       • Threat to whom?
         • It used to be thought that the threat had to be to the defendant himself, but now it can be to friends and family as seen in the case of R v Martin.
           • Subjective and objective tests
             • - Was the defendant compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death?(mainly subjective) - If so, would a sober person of reasonable firmness, sharing the characteristics of the accused have responded in the same way? - R v Graham
             • Bowen (1996)
               • Characteristics that can be taken into account; age, pregnancy, serious physical disability, recognised mental illness or psychiatric disorder, sex.

3. Martin (2000)

   • Court to take into account special characteristics which may have made him more likely to believe the threats.
     • No safe avenue of escape?
       • If there is a safe avenue of escape, then no defence. Gill (1963) Hudson and Taylor (1971)

4. Imminence of threat

   • Hudson and Taylor (1971) “the threat is hanging over the defendant at the time they commit the offence”. Abdul-Hussain (1999) Reinforced that the threat must overbear the D’s will

5. Cole (1994)

   • Owed money to a loan shark who threatened to beat Cole and his girlfriend up if he didn’t repay. Cole broken into several banks to get the money. He was not able to claim duress because the threat wasn't to rob a bank, just to repay him.

6. Intoxication for the defence

   • Voluntary intoxication + Belief of threat = No defence However, if there is no mistake and D is actually being threatened, then the intoxication is irrelevant and the defence can be used.

7. Self-induced Duress

   • Public policy reasons for refusing duress in these circumstances, i.e. Joining a gang e.g Sharp (1987) Hasan (2005) “when he foresaw what could happen"
     • Duress by circumstance
       • This is where D is forced to commit a crime because of surrounding circumstances - Willer (1986) No specific threat was issued - Conway (1988) Objective standpoint, the D was acting in order to avoid a threat of death or serious injury.