What type of defence is duress?
Full defence, necessity, common law
What tests have to be satisfied?
- Threat must be to cause death or serious injury
- Directed against defendant/immediate family/someone close
- Whether D acted reasonably in light of the threat will be judged objectively
- Threat must relate to crime committed
- No evasive action was available
- D did not leave themselves open to the threat
So terrified that he ceases to be…
“An independent actor”
Case to say only death/serious injury is enough
Valderrama-Vega. Homosexuality on its own was not enough of a threat, but could be considered ALONGSIDE death threat
Why can’t defence be used for murder/attempted murder/manslaughter
Lord Hailsham - reasonable man should be “capable of heroism if asked to take an innocent life rather than sacrifice own”
Criticised in Wilson due to 13 year old defendant
Against whom can a threat be made for duress?
Defendant
Immediate family
Someone close
Someone who’s safety D regards themselves as responsible for
Test for reasonableness in duress
Graham
1. Reasonably and genuinely believed they had genuine reason to fear death or serious injury
2. Would a sober person of reasonable firmness, sharing characteristics of the accused, react in the same way?
What characteristics can be considered for duress
Bowen - age, pregnancy, gender, serious physical disability, recognised mental illness or psychiatric disorder
Bowen - Not low IQ
Graham - not voluntary intoxication
Case for threat relating directly to crime
Cole - must be specific connection
Cases relating to evasive action available
Gill - could have called police
Hudson and Taylor - court accepts police protection is not fool-proof
Judgements on D leaving self open to the threat
Hassan - joining a criminal organisation or gang is voluntarily laying self open to threat
Ali - only in the case where d “foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence”
Examples of duress of circumstance
Willer - drove on pavement to avoid gang . Jury allowed to consider whether he was “under that form of compulsion”
Conway - defence available if D was objectively acting to avoid threat of death / serious injury
Martin - Graham test applies
Is duress of circumstances available for murder / attempted murder / manslaughter?
No - Pomell
Does D have to prove threat was real for duress of circumstance?
Cairns - no but reasonably perceived it
Abdul Hussain 4-part test for duress of circumstances
- Immediate peril of death or serious injury to defendant or for whom they have responsibility
- Peril must operate in their mind at the time of act, overbearing their will
- Execution of threat need not be immediate, but imminent
- No avenue of escape
