Duress = where D commits the Actus Reus & Mens Rea, but has been forced to commit the crime.
- Duress is a complete defence.
Duress by threats - force/pressure comes from actual threats by another. (E.g. A says to B if you don't do as I say "you will end up in the hospital")
Duress by circumstance - force/pressure comes from the circumstances that D is in. (E.g. A gang of lads running towards car, D drives off with guy on the bonet, guy ran over as D escapes.)
Duress by threats: following conditions apply:
1) must be a connection between threat and the crime. (D committed the crime he was ordered to do so.)
Cole - D owed money to loan sharks who threatened to hurt his family if he didn't get them thier money. D robbed 2 building societies. Held: "they didn't tell D to rob 2 building socieities, no defence."
What type of threat is needed?
2) What type of threat is needed?
Valderama-vega - Held: "there must be a threat of death or serious injury." Threats against property are not enough.
3) Who must be threatened?
Wright - D caught smuggling drugs, claimed her boyfriend was threatened with death if she did not do so. Held: "threats must be against you, your family, friends or somebody you are responsible for."
4) How immediate must the threat be?
Hassan - the threat must be immediate so that D does not have time to go to the police.
- If there is a gap of more than a few hours, D could be in danger of loosing the defence - up to the jury to decide.
5) Voluntary association (self-induced)
- can also apply if you hang around with someone you know is violent.
- where D joins a gang or associates with violent people, they cannot claim duress if they are then threatened by these people.
Key Questions: Did D know they were violent? Was D aware they could be found into committing such crimes?
Shepherd - D joined a gang of shoplifters who then threatened him, when he later tried to leave. Held: "defence available as D did not know they were a violent gang."
Hassan - D will not get the defence if they could have anticipated in advance that they would have been pressured into committing the type of crime that they did commit.
6) Should the D have resisted the threats?
- 2 stage Graham test.
1) Did D reasonably believe that he would be killed/suffer serious injury if he did not act? (subjective test)
2) Would a sober person of reasonable firmness, sharing the D's characteristics have reascted in the same way? (objective test)
Bowen - Held: "relevant characteristics include age, pregnancy, serious physical disability, recognised mental illness. BUT self-induced characteristics are not allowed (alcohol/drugs)."
Duress by circumstances:
- pressure comes from the circumstances D is in.
Pommell - D found in bed with loaded gun, claimed he took it off someone and was going to hand it in to the police in the morning. Held: defence of duress of circumstances was a general defence, applied to all crimes (except murder and attempted murder).
Duress of circumstances
R v Baker and Wilkins - D broke into her former partners house to get her child back fearing he would suffer long term. D argued lawful excuse, self-defence and duress. Held: duress did not include threats against long term psychiatric harm so that defence was not allowed.
Conditions which apply:
- type of threat
- threats against whom?
- how immediate must the threat be?
- self-induced duress
- should D have resisted the threats?