Duress
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- Created by: Ben Stephens
- Created on: 21-06-16 13:01
Introduction
- Common law defence
- Available only to those who were acting under threat of death or serious personal injury to themselves or another
- Burden of proof on P to disprove D was acting under duress
- Available to all crimes except murder (Howe) and attempted murder (Gotts)
- Will fail if property is the thing being threatened (Lynch)
- Two forms it can take:
- Duress by threats
- Duress by circumstance
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Duress by Threats
- Where D is being forced to break law under a direct threat by somebody of death/serious injury
- R v Whelan (1934) - 'threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal'
R v Graham (1982)
- D, a homosexual, lived with his wife and X, another homosexual.
- X threatened D and they killed D's wife
- X and D charged w/murder
- D raised defence of duress - claimed that he was acting under X's threats of violence
- Conviction upheld: Lord Lane laid out two part - objective - test
The Graham Test
- 1) Was D impelled to act as he did because he reasonably believed he had good cause to fear death or serious injury?
- 2) If so, would a sober person of reasonable firmness, sharing relevant characterisitcs with D, have responded as D did?
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How Serious Do Threats Need to Be?
- Graham test - V must have feared 'death or serious injury'
Valderrama-Vega (1985)
- Facts: D charged w/importing prohibited drugs + claimed duress
- Colombian drug dealers threatened to kill/injure D's family + out him as homosexual
- Also under financial pressure
- Would be ruined w/out drug money
- Held: Conviction quashed: Only threats of death/personal injury can constitute stress
- If these are the main reason, other factors could be taken into account
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Will Serious Psychological Injury Suffice?
Baker and Wilkins (1997)
- threat of serious psychological harm would not satisfy the defence
Shayler
- Obiter - the threats to mental health may suffice
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Threats to Whom
- Most of the time, threat will be aimed at D
- Valderrama-Vega - threats to D's fam may be sufficient
- Cases suggest that a thriet aimed at an acquaintance of D may suffice
- No case law yet for strangers
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Threat has to be in direct relation to crime commi
Cole
- D robbed building society - owed money
- Nobody expressly told him to rob it
- Money lenders were only pressing him to pay
- Conviction upheld: related to consequences of not paying money rather than not committing offence
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Must the Threat be Immediate?
- Defence will fail if D could have reasonably escaped from it
- Likely that duress will fail if D had opportunity to take steps to prevent the harm by informing the police
R v Gill (1963)
- D told to steal employer's lorry or face threat of violence
- Obiter: D would not be able to rely on defence because he had enough time between threat + carrying out theft of lorry to inform police
R v Hudson and Taylor (1973)
- Two young Ds witnessed an assault by X. Before trial, Ds were threatened w/violence if they gave evidence against X.
- Those threatening them were in public gallery, intimidating Ds as they took stand
- Fearing for their safety, Ds committed perjury + were convicted as threat not immediate
- Held: Conviction quashed: court ruled a threat is imminent if, at time of committing offence, it was 'opperating on the D's mind'
- This will depend on the facts
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Must the Threat be Imminent? Cont
R v Abdul-Hussain and Others (1999)
- Iraqi muslims hijacked flight to Jordan + forced it to fly to Britain
- Surrendered peacefully
- Claimed they were in fear of their lives as opponents of Iraqi regime
- Conviction quashed: defence of duress available in these circumstances; no requirement to wait for 'the knock on the door'
Pommell (1995)
- D kept gun for friend in middle ofnight
- Claimed that there was overnight time delay before he would inform police
- Held: delay of a few hours not excessive - especially in middle of night
Hassan (2005)
- Test: Belief by D was that threat was immediate or almost immediate. Belief must be reasonable
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Self-Induced Duress
Voluntarily Associating w/ Criminals
- Defence unavailable to D who voluntarily joins a violent criminal gang
- Or associates w/violent person
R v Sharp (1987)
- D joined gang that carried out robberies - one time, one person was killed by gang member
- Whole gang charged w/murder
- D claimed he acted under duress
- Conviction upheld: a D who voluntarily and with knowledge of its nature joins a criminal organisation which he knew might bring pressure on him to commit an offence cannot rely on duress
Hassan (2005)
- D voluntarily associated w/prostitute + her violent boyfriend - X
- X threatened D into committing burglary
- HL reinstated conviction - if D foresaw (or should have foreseen) risk of being made to commit an offence, then defence = unavailable
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If D Didn't Know Gang = Potentially Violent
R v Shepard
- D = member of shoplifiting gang
- At burglary trial, D raised duress, claiming he and his fam were threatened w/violence when trying to leave the gang
- Conviction quashed: while someone who joins a violent gang must expect to be threatened, this is not necessarily true of non-violent gangs
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Graham Test Part 2
Would a sober person of reasonable firmness, sharing [some of] D's characteristics, have responded as D did?
- Mostly objective
- Only characterisitcs that can be taken into account = those that affect D's ability to resist X's threats
- Self-inflicted characteristics caused by voluntarily intoxication = irrelevant
R v Bowen (1996)
- D = low IQ
- Charged w/offence but pleaded duress
- Appeal dismissed: low IQ not relevent to his ability to resist threats
- Following characteristics can be taken into account for characteristics:
- Age
- Physical disabilitis inhibiting self-protection
- Recognised psychiatric disorder
- Gender (being female)
- Pregnancy
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Summary
- Threat must be to cause death/serious injury - Graham
- Offence committed must be directly related to threat - Cole
- Threat must be towards D/D's fam/people D would regard himself as responsible for - Valderrama-Vega
- D had no opportunity to escape/inform proper authorities - Gill / Hudson and Taylor / Hassan
- Jury questions both objective - did D 'reasonably believe' - Graham / Hassan
- Defence will fail if D joins known violent criminal organisation - Sharpe
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Duress by Circumstances
- Circumstances dictate that - unless D commits a crime - either he or another person will be killed/suffer serious injury
R v Willer (1986)
- a gang of hooligans shouted at D + surrounded his car
- D drove off into shopping precinct
- D charged w/reckless driving
- Held: conviction quashed: duress = correct defence
Conway
- Two plain-clothed PCs approached D. D recklessly drove away, thinking the PCs were going to attack him
- Conviction quashed: the threat need not be actual, as long a D reasonably believes it's a threat
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Duress by Circumstances Cont
R v Martin (Colin) (1989)
- D charged w/driving while disqualified
- Claimed duress: his wife would kill herself if he didn't drive his son to work
- Held: Defence only available if:
- D objectively acted reasonably and proportionately to avoid threat of death/serious injury
- For jury to decide if basis of D's reasonable belief meant he had good cause to fear death/serous injury to himself or another, and whether a sober person of reasonable firmness, sharing D's other characteristics, would have responded to the situation as D did
- D objectively acted reasonably and proportionately to avoid threat of death/serious injury
Summary
- Can D objectively be said to have acted reasonably and proportionately (to the threat/circumstances)?
- Did D have good cause to fear death/serious personal injury
- Would a sober person of reasonable firmness have acted in a similar way
Pommell
- Defence applies to all offences but murder + attempted murder
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Limitations to Defence
- Threat must be one of death/serious personal injury - R v Graham
- Threat to damage/property won't suffice
- Defence not available to D who continues to offend after the threatening circumtance has ceased
- DPP v Bell
- Drunk D - fearing serious personal injury from X - ran to his car + drove away
- Only drove a short distance - no longer than was needed to get to safety
- Conviction quashed: had stopped when threat no longer present
- DPP v Bell
- Defence unavailable if duress of circumstance = 'internal'
- R v Rodger (1998)
- Ds escaped prison - claimed duress because they were considering suicide as response to staying in prison
- Internal threat
- Convictions upheld: threat must be external. One's own thoughts cannot amount to duress
- Ds escaped prison - claimed duress because they were considering suicide as response to staying in prison
- R v Rodger (1998)
- If D can escape threat/inform authorities, defence = likely to faii - Gill
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Limitations to Defence Cont
- Unavailable to murder - Howe, Gotts, Dudley v Stephens. Exception - Re A Children
- Dudley and Stephens
- Sailors ate cabin boy to survive shipwrecked
- Defence unavailable
- Re A Children
- Debate surrounding operation on conjoint twins
- If operation went ahead, one would die but the other would live
- If operation didn't happen, both would die
- As an exceptional case, duress was allowed
- Did NOT set a precedent
- Debate surrounding operation on conjoint twins
- Dudley and Stephens
- Defence cannot be extended to cover fear of psychiological injury - R v Baker and Wilkins
- But see Shayler
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