Duress

Question 1

Type of defence

Answer 1

Duress is a full defence for most crimes and the burden of proof is on the prosecution to disprove that the defendant was under duress. Duress cannot be used for murder (Howe) or attempted murder (Gotts)

Question 2

Subjective test

Answer 2

Did the defendant believe that he or others would be killed or physically injured if he didn’t comply with the threats

Question 3

First part of Graham test

Answer 3

requires the threat to be serious, unavoidable and imminent, plus duress cannot be self-induced

Question 4

Serious

Answer 4

there must be serious threats, those of which cause death or personal injury (Valderrama-Vega)

Question 5

Avoid

Answer 5

the D must not be able to avoid the threat, meaning that he cannot use the defence if he has time to inform the police or to avoid the threat he had been threatened into committing (Hasan)

Question 6

Specific offence

Answer 6

the defendant can only use the defence if the threats are in order to make him commit a specific offence (R v Cole)

Question 7

Self induced

Answer 7

duress will not be available if the defendant has voluntarily associated with criminals, as he should have reasonable foreseen that he might be forced to commit crimes by threats or violence

Question 8

Objective test

Answer 8

would a sober person of reasonable firmness of the same characteristics as the defendant, have reacted in the same or similar way

Question 9

Characteristics

Answer 9

age, gender, pregnancy, disability or mental illness