Duress

Question 1

Define Duress.

Answer 1

• Where a person has forced you into a crime, via some type of threat
• Full defence
• D must be considered to be so terrified he ceases ‘to be an independent actor’ + commits AR for offence + has required MR

Question 2

State which offences cannot use the Defence of Duress.

Answer 2

• Murder (R v Howe)
• Attempted Murder (R v Gotts)
• Treason

Question 3

State + explain where the Tests for Duress originated from.

Answer 3

• Lord Bingham in R v Hasan (2005) set out tests
• All must be satisfied for defence to succeed.

Question 4

Explain the first test for the defence of Duress.

Answer 4

Test 1: Threat of Death/Serious Injury
- R v Aitkens: Threat to punch D isn’t enough
- DPP v Lynch: Threat cannot be towards property
- R v Valderrama-Vega: Cumulative effect of threats can be considered
- R v Hudson + Taylor: threat must be effective at the moment that the crime is committed, doesn’t mean threat has to be carried out immediately.

Question 5

Explain the second test for the Defence of Duress.

Answer 5

Test 2: Against who must threat be made?
- Lord Bingham in R v Hasan: Must be directed against D or his immediate family or someone close to him or for whom he is responsible for
- R v Shayler: D can be responsible towards another person even if there’s no previous connection between them, e.g. D’s told to commit a crime or a bomb will be set off harming others.
- State who in scenario

Question 6

Explain the third test for the Defence of Duress.

Answer 6

Test 3: The Objective Test: Did D act reasonably?
- R v Graham: Set out Tests
- R v Hasan: Approved Tests
1) Was D compelled to act as they did because they had a good cause to fear serious injury/death?
2) If first test is satisfied, would a sober person of reasonable firmness, sharing the same characteristics as the accused, have responded in the same way
- R v Bowen: States the characteristics that can be taken into account: Age, Pregnancy, Serious Physical Disability, Recognised Medical Condition, Gender

Question 7

Explain the fourth test for the Defence of Duress.

Answer 7

Test 4: Did Threats relate directly to crime committed by D?
- R v Cole: D can’t rely on Duress if threat wasn’t made specifically to get D to commit that crime
- R v Valderrama-Vega: Crime not committed ‘But for’ the threat

Question 8

Explain the fifth test for the Defence of Duress.

Answer 8

Test 5: Was there any evasive action D could’ve taken?
- R v Gill: D’s in situation where they had no safe avenue of escape
- R v Abdul-Hussain: Duress doesn’t require a ‘virtually spontaneous’ reaction if threat was imminent
- R v Hudson + Taylor: If threat isn’t likely to be carried out immediately, little room for doubt that D could’ve taken evasive action

Question 9

Explain the sixth test for the Defence of Duress.

Answer 9

Test 6: Did D lay themselves open to threats?
- Can’t use defence if voluntarily laid themselves open to the threat
- R v Sharp: Duress not available if D joins a criminal gang, which he knows is violent