Duress + necessity

Question 1

What is duress?

Answer 1

Defence of duress will be a complete defence for most crimes however it will not be available for murder or attempted murder.

R V Howe-

• Part of a gang who killed 2 people. He was the lookout and pleaded duress to the murders.
• Overrules previous decision and duress is no longer available for the case of murder.

Question 2

What are the 2 types of duress?

Answer 2

1. Duress by threats

2. Duress by circumstance

Question 3

What is duress by threats?

Answer 3

Defendant commits a crime because they are under a threat of death or serious injury if they do not do so.

R V Graham-
- He lived with his wife and homosexual lover, lover threatened him into killing his wife.
- Threats not sufficient to constitute duress.
Set up the test.

Question 4

What is the test for duress by threats?

Answer 4

1. Did the defendant reasonably believe death or serious injury would occur if they did not comply?
2. Would a sober man of reasonable firmness have also done as they did?

Defendant must not be able to avoid the threat. Must be unavoidable and imminent.

Question 5

What will be considered a serious threat?

Answer 5

Threats of death and personal injury are necessary for the defence.

R V Valderrama-Vega-

• Smuggling cocaine as under duress from drug baron who threaten to kill him, his family and out him as homosexual.
• Only the threats to him and his family constituted duress.

Question 6

What is meant by unavoidable and imminent?

Answer 6

D must not be able to avoid the threat. If they had the chance/time to inform the police or avoid the crime duress not available

R V Gill-

• Stole lorry after being threatened.
• Threat not immediate as he had time to go to police.

Question 7

What is self-induced duress?

Answer 7

Duress not available when D has voluntarily associated themselves with criminals.

R V Hasan-

• Driver for prostitute whose boyfriend threatened him with violence if he didn’t commit burglary.
• No duress as it was self-induced, there was always a risk of being threatened.

Question 8

What is meant by characteristics of D?

Answer 8

Second part of ‘Graham test’ is objective, but the courts can take into account some of Ds characteristics.

R V Bowen-

• Obtained property by deception after being threatened with a petrol bomb.
• Low IQ which made him more susceptible threats but jury weren’t allowed to take this into account.

Question 9

What is duress by circumstances?

Answer 9

Type of duress which requires fear of imminent death or serious injury, not due to a threat by another person.

R V Martain-

• Drove his stepson to work even though he was disqualified from driving as wife threatened to kill herself if he didn’t.
• Quashed the conviction and set up a 2 stage test.

Question 10

What is the test for duress by circumstance?

Answer 10

1. Did they believe death or serious injury would result?

2. Would a sober person of reasonable firmness done as D did?

Question 11

What happened in R V Pommell?

Answer 11

• In possession of a gun which a friend had gave to him. Claimed he was going to take it to the police station in the morning.
• No defence as he should have done it immediately. Any unexplained delay would prevent use of defence.

Question 12

What is the defence of necessity?

Answer 12

Similar to duress by circumstance and did not exist until the case of RE A as was previously rejected in R V Dudley and Stephens.

RE A-

• Conjoined twins who would both die if they were not separated. One of the babies was much weaker and would die but the other would survive if separate.
• Parents did not want them to be separated but courts authorised the operation due to necessity. (civil)

Question 13

What is the test for necessity?

Answer 13

1. The act must be necessary to avoid inevitable evil.
2. No more was done than necessary.
3. The evil inflicted was not disproportionate to the evil avoided.