Defence of duress (threat and circumstance)

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Defence of duress (threat and circumstance)

Duress = cumpulsion by threat or force. 

Defence of duress can be in two ways: threat and circumstance. 
Available for all offences in general - HUDSON AND TAYLOR but...
Defence of duress is not avaialble for murder - HOWE
Defence of duress is not available for attempted murder - GOTTS 
Defence is not available for some forms of treason - STEANE 

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duress continued

The threast must be directed towards D or someone whom their reasonable responsible for-SHAYLOR,ORTIZ, WRIGHT
The threat must be of death or serious injury 
-HUDSON AND TAYLOR, VALDERAMMA VEGA
Threat must be for defendant to committ a specific offence
-COLE 

Defence of suress must not be self induced 
If D knew the gang were likely to committ the crime - no defence - SHARP
D cannot rely on defence when knowing they are associating with criminals - HASAN

Must be no safe avenue of escape - GILL
HUDSON AND TAYLOR -
 Police protection is not always effective

Threat has to be imminent but not immediatte - HUDSON AND TAYLOR
HUSSAIN - must be imminent threat of death or serious injury 
Must be on D's mind at time of offence
Threat does not have to be immediatte.
OVERRULED BY HASAN - IMMEDIATTE OR ALMOST IMMEDIATTE

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Duress continued

Graham Test 

1) Was D compelled to act as he did because he feared serious injury or death?
2) Would the sober person with reasonable firmness sharing the same characteristics as D have acted in the same way? 

R V BOWEN - characteristics = pregnancy, mental stability, age, sex, NOT IQ

BURDEN OF PROOF ON PROSECUTION
STANDARD OF PROOF BEYOND ALL REASONABLE DOUBT 
MAKINTOSH

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duress by circumstance

When the D is forced to act due to compelling circumstances
eg: WILLER - forced to drive on pavement due to gang surrounding car.

Graham test is used 
-MARTIN
-POMMELL

Subjective - depends on what D percieved the situation to be, even if there is no actual threat. 

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