Defence of Duress

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  • Created on: 31-03-14 15:36

Definition of Duress

The defendant is forced to commit a crime because a threat of death or serious harm effectively deprives them of a choice of whether to act.

Duress is avialable to all crimes exccept murder, attempted murder and, possibly treason.

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Duress by threats defined

A person's will is overborne by threats so that he commits an act he would not otherwise do.

Example: Armed gunman points loaded gun at a man threatening him to use a fake credit card to get money from a cashpoint machine. The defendant is stealing money but is only doing it because of the threat.

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How serious must the threat be?

The threat must be of death or serious injury.

Valderrama-Vega 1985- V imported cocaine and said reieved threats of death, financial ruin and exposure of homosexuality.

Legal question is the type of threat in question.

COA said all threats considered as death threatened.

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Who must be threatened?

The following must be threatened for this defence:

The defendant, family members and even a passenger in a car have given rise to the defence.

Example: Wright 2000- W arrested with cocaine and said acted because boyfriend threatened.

Legal question- Person threatened

Person subject to threat extended beyond immediate family.

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The Graham Test 1982

Was the defendant compelled to act because he reasonably believed he had good reason to fear death or serious injury; and would a sober person of reasonable firmness, sharing the same characteristics as the defendant, have acted in the same way?

Graham 1982- G was a homosexual who lived with wife and K. G helped K kill wife and said acted as scared of K.

The first element of this test is subjective, the second is objective as only some characteristics are relevant, including age, pregnancy, a serious physical disability, gender an a recognised mental illnes or psychiatric disorder.

Test

COA created standard test.

Martin 2000- M suffered from a schizoid-affective disorder which meant he could percieve things said to him as a threat that would be carried out. He relied on this when claiming to have been forced to carry out two robberies. Trial judge said M's disorder only relevant to the second part of the Graham test. M appealed saying that the jury should have considered whether in view of his condition he may have reasonably feared for his safety. The COA quashed his conviction and said that the same principles should apply as in self defence where an honestly held belief gives rise to the defence, even if it is mistaken and unreasonable.

Hasan 2005- H associated with violent drug dealer and told to burgle house and open safe or he and family harmed. H entered house with knife but could not open safe. Self induced duress test H has no defence because his association with drug dealer meant he forsaw or ought to have foreseen risk of compulsion by threats of violence.

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What if there is a safe avenue of escape?

This negates the defence. In exceptional cirumstances the defence might still be available.

Gill 1963- G claimed he and wife been threatened unless he stole lorry.

Safe avenue of escape.

No defence as G could have reported threat in time lapse before theft.

Hudson and Taylor 1971- H and T were teenage girls who gave perjured evidence because threatened with having faces cut.

Safe avenue fo escape.

COA quashed convictions as could have sought police protection but not realistic for them.

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When must the threat occur?

Must be effective and operate on the defendant when crime is committed.

Must be imminent peril of death or serious injury to the defendant or to those for whom he has responsibility.

Abdul-Hussain 1999- A and others hijacked plane which landed in UK as feared return to Iraq. Immediacy/ Imminence COA overturned convictions, threat need only be imminent.

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Nexus Rule?

Must be a threat to commit a particular offence.

Cole 1994- C robbed building societies to repay debt as he and family threatened.

Nexus.

 C's conviction upheld as no nexus between threat and offence.

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Intoxication and threat

What is the belief in a threat comes as a result of intoxication?

A mistake due to voluntarily intoxication negates the defence.

If there is no mistake and the intoxication does not affect whether there is duress or not the defence can still succeed.

For example, where he is threatened by a man with a gun. In this situation there is duress and it is irrelevant whether the defendant is intoxicated or not.

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What if the duress is self-induced?

Usually this negates the defence. The courts have shown some flexibility.

Sharp 1987- S joined robbery gang, tried to leave before sub-postmaster killed in robbery. S no defence as knew gang likely to use violence.

Shepherd 1987- S joined shoplifting gang, threatened with violence when tried to leave. S conviction quashed as S no knowledge gang likely to use violence.

Heath 2000- H owed money to drug dealer and threatened so supplied cannabis. H no defence as knew getting into debt with drug dealer meant threat of violence existed.

 Hasan 2005- H associated with violent drug dealer and told to burgle house and open safe or he and family harmed, He entered house with knife but could not open safe. H no defence as association with drug dealer meant he foresaw or should have foreseen possibility of violence.

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Problems with Duress

No allowance for low IQ Bowen

Police protection Hudson and Taylor

Unavailability for murder Howe

Age and Sucsceptability Wilson

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Duress by Circumstances

Threat comes from circumstances rather than a direct threat.

First case that recognised it- Willer 1986 W and passenger in car surrounded by threatening youths. W drove slowly on pavement to escape.

Beginnings of duress of circumstances

COA said jury should be able to consider whether W drove under some kind of duress.

Not able to be used for murder and attempted murder.

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Other cases that prove duress of circumstances

Conway 1988- C's passenger saw men and thought they had shot at him so C drove off fast.

COA quashed C's conviction saying duress possible defence if from objective perspective acting to avoid threat of death or serious injury.

Martin 1989- M's wife threatened suicide unless M drove son to work. M had lost licence.

Test for duress of circumstances

COA adapted test from Graham 1982.

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Can be used in all crimes accept murder and attemp

Pommell 1995- P found by police with gun in bed during drugs raid. P said taken gun from man and going to hand it in.

Extent of defence of duress of circumstances.

 COA held duress of circumstances could apply to any offence.

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Necessity

Circumstances force a person to act in order to prevent a worse evil from occuring.

Has been difficult to recognise the existence of the defence.

Methods of avoiding this defence have been used.

Necessity now exists but remains potentially liminited.

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The development of Necessity

Dudley and Stephens 1884- D and S adrift at sea without food and water and ate cabin boy

Extent of necessity

No defence- no life worth more than another

Re F 1990- Health authority applied for declaration to serilise F, severely mentally disabled woman at risk of pregnancy.

Development of necessity

HL granted declaration- lawful duty of doctors to act based on necessity.

Re A 2000- Health authority applied for declaration to separate conjoined twins so one lived but the other died.

Development of necessity

Lord Brook aplied necessity- act done to avoid otherwise unavoiadable consequences which would inflict inevitable and irreparable evil. No more done than reasonably necessary and evil done not disproportionate to that avoided.

Shayler 2001- S past member of MI5 charged with breaching OSA 1989

Limit of necessity and present definition.

No defence of necessity and redefined as Lord Woolf used same test as Lord Brook in Re A. Sugested duress of circumstances and necessity interchangeable.

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