Defence of Duress

Relevant where D has committed the offence because he has been threatened with death or serious injury.
If D is told to commit a specific offence 'or else' it is known as duress by threats.
If D decides to commit an offence because of the surrounding circumstances, it is called duress of circumstances.
It is a general defence to all crimes except murder, attempted murder and some forms of treason. The burden is on the prosecution to disprove it beyond reasonable doubt.

Duress by threats

According to the House of Lords in HASAN, the elements of duress by threats are:

There must be a threat of death or serious injury (confirming GRAHAM)
That the threat must be made to D or his immediate family or someone close to him or someone for whom D would reasonably regard himself as responsible.
D must reasonably believe that he had good cause to fear death or serious injury
His response must be one which might be expected of a sober person of reasonable firmness
There must be no reasonable opportunity to escape the threat
D cannot rely on threats to which he has voluntarily laid himself open.

Was there a threat of death or serious injury?

It is probable that a threat to cause serious psychiatric injury could amount to duress: BAKER v WILKINS

Was the threat made to D or someone for whom D would reasonably regard himself as responsible?

In WRIGHT threats against D's boyfriend sufficed.

Did D reasonably believe that he had good cause to fear death or serious injury and was his response one which might be expected of a sober person of reasonable firmness.

It was held in BOWEN that when deciding if D reacted 'reasonably' they could take into account the following characteristics:

D's age or sex
D was pregnant
If D had a serious physically disability
If D had a recognised mental illness (e.g. battered woman's syndrome)

A low IQ would not be taken into account as it does not affect D's ability to resist the threat.

Was the crime nominated by the duressor?

Someone must have said 'commit this crime or else': COLE

Was there a reasonable opportunity to escape the threat?

The threat need not be capable of being carried out immediately, as long as it was still effective at the time D performs the crime - i.e. D must reasonably believe that the threat could be carried out immediately or almost immediately: HASAN
The defence will not be available where D has a reasonable opportunity to contact the police or escape: GILL
When the threat is withdrawn or becomes ineffective, D must stop committing the crime as soon as he reasonably can.

Has D voluntarily laid himself open to the threats?

According to HASAN, if D voluntarily associates with criminals, he will not normally be able to use the defence for any crime he commits die to threats of violence by those criminals. Can use only if he did not foresee that they might try and make him commit an offence through threats and a reasonable person would not have foreseen either.

Duress of Circumstances

This is where D is forced to commit a crime because he reasonably believes there is a risk of death or serious injury arising from the circumstances in which he finds himself, not because of a threat to commit a specific offence.
The Court of Appeal held that duress of circumstances applied to all crimes except murder, attempted murder and some forms of treason after the defence was extended in the case of POMMELL.
The same principles apply to duress of circumstances as to duress by threats: HASAN. One difference is that the defence of duress of circumstances may be used for any offence which is a reasonable response to the danger posed by the circumstances.

	Criado por Lucy Nove quase 10 anos atrás

A2 Law (Offences Against Property ) Notas sobre Offences Against Property Offences and Defences, criado por Lucy Nove em 27-01-2017.