Duress Flashcards
Duress / threat of circumstance
D is claiming that although he did commit the AR of the offence with the MR, he only done so because he has no effective choice, faced with threats of serious injury or death.
“Lesser of two evils”
If duress is going to be successful, the following must be applied. STAGE 1
1) Threat of death or serious injury.
HASAN - D’s honest and reasonable belief in the threat.
VALDERAMA / VEGA - jury were entitled to look at the cumulative effects of all the threats. (Only need this if there’s multiple threats)
STAGE 2. Is the threat directed at D, someone he has responsibility for or someone for whom the situation makes him responsible?
HURLEY & MURRAY - Wife
CONWAY - Friends
SHEPARD / COLE - Himself & family
Stage 3, Graham Test
Test for establishing duress.
Did D fear death or serious injury? —> subjective
Would a reasonable man with the same characteristics have reacted in the same way? —> objective
Apply both
Characteristics taken into account in Graham Test?
- Age, sex, certain physical mental attributes taken into account.
- Timid nature / low intelligence ignored as characteristics of the reasonable man - BOWEN
Stage 4, is the threat going to follow immediately or almost immediately?
Stage 5, Has D has an escape opportunity or chance to get police protection.
Stage 4
- HASAN 2005 HL:
For the defence of duress, the threat has to be one that the D reasonably “expects to follow immediately or almost immediately”
Stage 5
GILL - NO DEFENCE
Stage 6, Has D voluntarily joined a criminal enterprise?
SHARP - joined a gang and had no defence as he knew they were violent
SHEPARD - had a defence, didn’t know they were violent
HEATH/ALI - Associating with violent people / drug dealers - NO DEFENCE
Stage 7, is there a nexus link between threat and offence?
COLE - No nexus, no defence because D hadn’t been told to commit a criminal offence.
Nexus duress of threats is told the type of offence to commit - HASAN
Nexus duress of circumstances if D has a spontaneous reaction - CONWAY
Have they been told what crime to commit or was it spontaneous?
