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  • Affirmative Defences: Duress
    • Negate liability even where actus reus + mens rea are met
      • Complete acquittal where successful
        • Not available for murder (Abbott); attempted murder (Howe 1987 obiter; confirmed in Gotts 1992); accessory to murder (Howe 1987); treason; where D joins a violent criminal gang (Sharp); terrorist group (Fitzparick); indebted to drug dealers (R v Ali; R v Flatt); where D could have taken evasive action (Huxley; Abdul-Hussain; Hasan)
          • May be allowed where criminal organisation not known to be violent (Shepherd)
            • D does not have to foresee the type of offence (Hasan)
          • Heath [2000] - drug dealers - defence not available as he knew the risk; Mullally [2012]
            • Ali [2008] - not necessary for D to know that coercer is engaged in any specific criminal activity as long as the risk of being subjected to threats of violence was foreseen/foreseeable
          • Available for causing GBH with intent (s.18 OAPA) but not murder despite holding same mens rea - defence depends on fate (if V dies then guilty of murder; V alive acquittal)
      • D has mens rea but as acting under compulsion not free will so negated
        • excuse, not like self-defence (justification)
    • Action taken by D was necessary to avoid the unjust threat of harm
      • Obedience taken to the criminal law does not demand disproportionate personal sacrifice
        • Excuse - unfair to expect a person to sacrifice themselves or a person for whom responsible for conformity to the law
          • Not a defence to murder (Abbott v The Queen [1977] UKPC)
          • duress = excuse (R v Lynch [1975]; R v Hasan [2005]) both HL
        • AG v Whelan [1934] Murnaghan J (Irish CCA) - defence because "threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal.'
    • 1. duress by threats from another person
      • a) immediate death or serious personal injury to D or another
        • Threat to D, his family (Ortiz (1986); Martin (1989)); or girlfriend (Hurley and Murray [1967] SC of Victoria) or someone he feels reasonably responsible for (Hasan [2005])
          • Shayler - could not pinpoint what threats might involve and to whom
            • Lord Woolf - incl. members of D's close circle + also instances where D is placed in a emergency situation (bomb in office if D does not act)
            • Lord Woolf: disillusioned agent who claims someone, somewhere, might one day suffer if he does not make such disclosures and that he has responsibility for all such persons, e.g. the general public
          • Conway - incl. passengers in car
        • No evasive actions could reasonably have been taken - police protection
          • Threat must be balanced against seriousness of offence by D
      • Definition in AG v Whelan
        • “Threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance."
    • 2. duress by circumstances (imminent peril - in avoiding it D nominates and executes their own crime)
      • Harm threatened cannot be out of proportion to the price exacted (Perka [1984])
        • 'Minimum - situation so emergent + peril so pressing normal human instincts cry out for action and make a counsel of patience unreasonable'
    • Reform? In opposition to omissions liability - people should sacrfiice themslves for others
      • Is it fair to treat a coerced killed differently from someone who had intent + lost control?
        • Prof Wilson - should be a partial excuse when V is victimised because of D's self-preservation
          • Partial as society needs expiation of guilt from D who kills another's loved one to save themself
  • Graham test
    • Was D reacting to an immediate threat? (Gill 1963)
      • Does not always have to be immediate (R v Ireland)
        • R v Hudson & Taylor - perjury, 2 girls, seeking protection not always reasonably expected
          • Defs young + impressionable
          • Baker + Ward - had opportunity to seek police prot. but trial judge did not consider if reasonable person in their position would have done so - acquitted
        • Duress of circumstances (Abdul-Hussein - plane hijack escaping death in Iraq)
          • But courts should be restrictive where evasive action/police protection was available (Hasan) - public policy
          • Imminent threat NOT immediate threat
      • Was the threat reasonably held?
        • Was it a threat of death/GBH?
          • Did D have a good cause to fear death or GBH ?
          • Threat must be so great overbears ordinary powers of human resistance
    • R v Cole 1994 Threat has to be for a specified crime. It is not sufficient that the defendant has felt the need to commit a crime to meet a demand for money.
    • Approved in Howe (1987) and Hsan (2005) all UKHL


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