Duress Key Points

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KEY FACTS ON DURESS
ELEMENTS COMMENT CASES
Source of Duress By threats Hudson & Taylor 1971
By circumstances Willer 1986, Conway 1988
Martin 1989, Pommell 1995
Degree of duress Threat or danger posed must be of Hudson & Taylor 1971
death or serious injury
This means physical injury, not Baker & Wilkins 1997
psychological injury
Threat to expose secret sexual Valderrama-Vega 1985
orientation or financial circumstances
is insufficient
Threat to damage or destroy Lynch 1975
property is insufficient
Duress against whom? Usually D personally Graham 1982
Cairns 1999
Against family Ortiz 1986, Martin 1989
Persons for whom defendant Wright 2000
reasonably feels responsible Shayler 2001
Imminence of the threat Threat must be operative on Def Hudson & Taylor 1971
Threat or danger must be believed to Hasan 2005
be immediate or almost immediate
Defendant should alert police as soon
as possible; delay in doing so does not Gill 1963
necessarily mean defence fails Pommell 1995
Association with criminals Voluntarily joining a violent criminal Fitzpatrick 1977
gang means defendant may not have Sharp 1987
the defence
Voluntary association with violent Ali 1995, Baker & Ward1999,
criminals has the same effect Heath 2000, Harmer 2001
But only if the defendant foresaw or Shepherd 1987
should have foreseen that he may be Hasan 2005
subjected to duress
Reasonable person test Defendant must have reasonably Cairns 1999, Safi 2003,
believed that a threat/danger existed Hasan 2005
Defence fails if a sober person of Graham 1982, Howe 1987
reasonable firmness would have
resisted the threats
Bowen 1996
The reasonable person shares some
of Def's characteristics, e.g. age
Availability of defence Defence available to most crimes Howe 1987, Wilson 2007
except murder

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And attempted murder Gotts 1991
Burdon of Proof On Def, on prosecution to disprove
Effect of defence Defendant not guilty…read more

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