Defences - Duress

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What is this defence based on?
The fact that D has been forced to commit the crime. They were threatened by death or serious injury.
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The defendant can be so scared that they..
cease to be an 'independent actor' however they still have the mens and actus for what they did, so if this defence wasn't available, they would be liable.
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Duress comes in two forms
Duress by threats or duress of circumstances
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Lynch (1975)
duress is available to the secondary party with a charge of murder
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Howe (1987)
HOL overruled this and said that duress was not available to anyone with a charge of murder, even if they were a secondary party and not done the killing themselves. Also not ATTEMPTED MURDER but this was obiter so not binding
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Wilson (2007)
duress doesn't apply to murder even when D is young and less able to resist pressure
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Gotts (1992)
COA decided to follow obiter of attempted murder in Howe.
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Duress by threats
Persons will is overruled by threats of death or serious injury, so that they do something they wouldn't usually do
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Threat of death or serious injury
Threat of death or serious injury, lesser threats do not provide a defence
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Valerrama Vega (1985)
If there are SERIOUS threats, then the whole effect of the threat can be considered.
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Martin (1989)
threats to family or friends can be basis for duress.
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Draft Criminal Code
Should strangers be included? This proposed that this should be law.
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Jury's subjective test: Graham (1982)
Was D compelled to act as he did because he reasonably believed that he had a reasonable reason because of fear/serious injury/death?
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Jury's objective test: Graham (1982)
Would a sober person of reasonable characteristics have responded in the same way?
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Martin (2000)
interpreted the graham tests to whether D feared for his safety, so the jury could take into account special characteristics. Still in doubt due to Hasan (2005)
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Bowen (1996)
What characteristics can be taken into account-ability to resist pressure threats. AGE, PREGNANCY, SERIOUS PHYSICAL DISABILITY, MENTAL ILLNESS AND GENDER.
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Gill (1963)
Duress can only be used if D is in a situation with no safe avenue of escape
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Hudson and Taylor (1971)
If police protection is available there is no defence, however it was held that this may not be effective. However this is still in doubt due to Hasan (2005)
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Abdul Hussain (1999)
Threat doesn't necessarily have to be immediately but imminent.
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It was also ruled in Abdul Hussain (1999)
imminent peril of death/serious injury to D or person with responsibility, must operate on D's mind at the time and overbear his will, execution of threat doesn't have to be immediate but imminent.
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Cole (1994)
Can only use defence of duress of threats if it is to commit a certain offence
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Voluntary intoxication
Mistakenly believe that they're being threatened, cannot use defence, however if this intoxication is irrelevant they can use it.
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Self induced duress
Brings duress on himself-if they are aware that they may put themselves in this situation, can't use defence
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Martin (1989)
Duress of circumstances only used if Graham tests are used.
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Duress of circumstances
defence for all crimes except murder and attempted murder
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Could D have a defence if there was no real threat?
Not required to prove that the threat was actual or real, only that they perceived death or serious injury.
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Ruling in Howe(1987)
Not allowing murder could seem unfair - sacrificing children or planting bomb
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Ruling Wilson (2007)
Age and susceptibility are ignored COA criticised this.
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murder/s18 gbh
intention required is the same yet they let s18 have a defence and not s20
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Sentencing for murder
mandatory life sentence, the fact that it is duress is not considered is unfair, attempted murder judges have some discretion.
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Law commission reports
proposed that duress should be available for all crimes and also proposed that it should be available for murder.
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Low IQ
In Bowen (1996) this was ignored, could seem harsh.
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Other cards in this set

Card 2

Front

The defendant can be so scared that they..

Back

cease to be an 'independent actor' however they still have the mens and actus for what they did, so if this defence wasn't available, they would be liable.

Card 3

Front

Duress comes in two forms

Back

Preview of the front of card 3

Card 4

Front

Lynch (1975)

Back

Preview of the front of card 4

Card 5

Front

Howe (1987)

Back

Preview of the front of card 5
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