Chapter 11: General defences - Duress Flashcards

Question

What case laid down the test for duress? (what 2 case affirmed it?) ## Footnote 3rd element/requirement

Answer 1

test for duress * 2 stages for duress laid out by **R v Graham [1982]** Affirmed by HOL in **R v Howe [1997]** and **R v Hasan [2005]**

Answer 2

Test A - **The Threat Limb** (subjective test) * Whether D was **compelled to act** as he did, on grounds of the circumstances that he **reasonably believed** them to be, he had a good cause to **fear** that if didn’t do so act, the duressor would **kill him or cause GBH**? * Examine the threat > would it be believed to act as so? Test B - **The Response Limb** (objective) * If so, have the prosecution make the jury sure that a **sober person** of **reasonable firmness** sharing the D’s characteristics would **not have responded in the same way** to the threat

Answer 3

First limb * Must the D’s believe in duress be **honest** (subjective) or **reasonable** (objective)? * There need not actually be a threat; so long as D **reasonably believed** that there was threat of death or serious physical injury

Answer 4

**R v Safi [2003]**

Answer 5

Facts 1. D hijacked plane which landed at Stansted Airport 2. Claimed the act was due to fear of persecution (ill-treatment) by Taliban in Afghanistan Held * COA held that reasonable belief in the threat was **sufficient** Takeaway * There’s **no need** to establish **actual threat** exists

Answer 6

**R v Martin (David Paul) [2000]** - “schizoid-affective state” Facts 1. D committed 2 robberies 2. Arrested after making phone calls to the police drawing attention to himself 3. Claimed duress - that 2 men who lived in the same estate were prevailing over him 4. By means of serious threats of death or GBH to him and his mother, thus needing to commit the robberies 5. Psychiatrist said he was suffering from a schizoid-affective state and would be more likely to regard the statement as threatening and to believe them 6. Judge directed jury on duress that D’s belief of reasonableness was objectively decided Held * Direction to jury was wrong * Proper test was **subjective test**, in the circumstances of D honestly believing them to be Takeaway * D’s psychiatric condition is relevant to his reasonable belief * Only ‘**schizoid-affective state**’ is allowed as a mental deficiency

Answer 7

Meaning of “**same characteristics**” as the defendant * The reasonable person is of **average fortitude** that is strength and **firmness of the mind**

Answer 8

* R v Hegarty [1994] * R v Horne [1994] * R v Bowen [1996]

Answer 9

Facts 1. D sought to introduce psychiatric evidence that he was especially vulnerable to threats Issue * His aim was to argue that characteristics of vulnerability should be attributed to the reasonable man regarding the second test Held 1. COA **refused to admit the evidence** in both cases as it rejected the argument that the reasonable person should have these characteristics 2. The rationale of the objective test was to require **reasonable firmness** to be displayed and it would completely undermine the operation of that test if evidence were admissible to convert the reasonable person into one of little firmness

Answer 10

Held 1. COA held that low IQ (short of mental impairment or mental defectiveness) was **not a relevant characteristic** 2. On grounds it does not make those who had it less courageous or less able to withstand threats and pressure than an ordinary/reasonable person

Answer 11

**More vulnerable** - not allowed * Accused more pliable, vulnerable, timid, or susceptible to threats than a normal person can’t be given to the reasonable/ordinary person **Different category of persons** - allowed * Category of persons that jury might think less able to resist pressure than the ordinary person * E.g. age, sex, pregnancy, serious physical disability, recognised mental illness/psychiatric condition **Characteristics in provocation** - not allowed * Would not necessarily be relevant in the case of duress * E.g. homosexuality * Self-imposed abuse: alcohol, drugs, glue-sniffing **Psychiatric evidence** - may be allowed * Other psychiatric evidence other than ‘**schizoid-affective state**’ is not allowed * E.g. mental illness, mental impairment, recognised psychiatric condition

Answer 12

**R v Barker [1999]** * If these are found to be the case, then there is no need to test duress, just convict 1. “A man **must not voluntarily put himself in a position** where he is likely to be subjected to such a compulsion”; and 2. “If a person **can avoid the effects of the duress** by escaping from the threats, without injuring himself (or to a member of his immediate family) he must do so.”

Answer 13

Defence of duress also not available for people who commit crimes as a consequence of threats from members of **violent gangs** which they have **voluntarily joined** * A person who joins criminal associations **can be blamed** for his actions * On grounds that joining these organisations, are already illegal, and putting themselves in the position where **probable** to such threats

Answer 14

* **R v Sharp [1976]** * **R v Ali [1995]** * **R v Hudson and Taylor [1971]**

Answer 15

Facts 1. D was in a party to conspiracy to commit robberies who said that he wanted to pull out when he saw his companions equipped with guns 2. After, robbers threatened to blow his head if he did not carry on with the plan 3. In the robbery, the robber killed a person 4. D was convicted of manslaughter and appealed Held 1. **Can’t plead duress** 2. COA held that the man **put himself in such position** where likely subject to compulsion (threat) 3. **Lord Lane CJ** - “Where a person has **voluntarily**, and with **knowledge** of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he **cannot avail** himself of the defences of duress.” Note * Unavailability of duress regarding criminal organisations/gangs are not inevitable * It depends on the nature of the organisation and the D’s knowledge of it (if he was unaware of violence, defence might be possible)

Answer 16

Facts 1. D was a heroin addict and a seller, who fell in debt to his supplier 2. He knew the supplier to be a very violent man and had been threatened by him that would be shot if he did not repay the debt 3. Supplier gave him a gun and told him to give the money by the following day 4. Supplier told him to get it from a bank or building society 5. Convicted despite defence of duress and appealed Held 1. COA dismissed appeal 2. Defence **not available** where D knew of a violent disposition in the person involved with him in the criminal activity which he voluntarily joined ## Footnote extended principle in **Sharp**

Answer 17

Facts 1. 2 teenage girls committed perjury during trial of X 2. Claimed that X’s gang threatened them with harm if they told the truth and that one of them was sitting in the public gallery during the trial Held * Defence of duress was not available as the threat was **not sufficiently immediate** * **Lord Widgery CJ** stated - 1. The threat was **no less compelling** because it could not be carried out there if it could be carried out in the streets of the town at the same time (would have been available to them outside court) 2. The rule does not distinguish cases in which the police would be able to provide effective protection, from those when they would not. 3. The matter **should have been left to the jury** with a discretion that, whilst it was always open to the crown to show that the defendants had not availed themselves of some opportunity to neutralise the threats, and that this might negate the immediacy of the threat, regard had to be had to the age and circumstances of the accused.

Chapter 11: General defences - Duress Flashcards

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