Duress

Question 1

Duress by threats introduction/ definition

Answer 1

• D may be able to argue the defence of duress by threats
• Duress is defined as where the D only commits the crime because they were forced.

Question 2

Duress by threats stage 1

Answer 2

• Firstly, the D must satisfy the two part test established in in Graham, which establish whether the D should have resisted the threats:
  1- Did the D act because he reasonably believed that they or another would have suffered death or serious injury? (Subjective)
  2- Would a “sober person of reasonable firmness”, but sharing the D’s characteristics, have responded by committing a criminal offence (Objective)
• Bowen rules that relevant characteristics include age/ pregnancy/ physical ability/ mental disability

Question 3

Duress by threats stage 2

Answer 3

• The threat must be of death or serious injury. Threats against property are not enough (Valderama-Vega)
  -Apply

Question 4

Duress by threats stage 3

Answer 4

• The threat must be against the D or someone they are responsible for (Wright)
  -Apply

Question 5

Duress by threats stage 4

Answer 5

• The threat must be immediate so that the D does not have time to alert the authorities (Bathcelor)/ the threat must be imminent
  -Tip- does the D feel as though they are being watched?

Question 6

Duress by threats stage 5

Answer 6

• D must have committed a crime which was nominated by the person making the threat- there must be nexus between the threat and the crime committed (Cole)

Question 7

Duress by threats side rule

Answer 7

• Self induced duress- If the D brought the pressure on themselves (e.g. by joining a gang) they will lose the defence (Hasan)
  -Side rule= does not work for Murder (Howe) or attempted murder (Goss)

Question 8

Duress by threats side rule

Answer 8

• D may be able to argue the defence of duress by circumstance (Necessity)
• duress is defined as where a D commits an act because they had to

Question 9

Duress by circumstance stage 1

Answer 9

• Duress by circumstance can be used for an act, which would ordinarily be considered a crime as long as the D can prove the following:
  1- The act was done to avoid the consequence which could not otherwise be avoided, and if they had been followed, would have inflicted inevitable and irreparable evil upon themselves or others (Re A)
  2- No more was done than reasonably necessary
  3- The evil inflicted was not disproportionate to the evil avoided

Answer 10

• Following the case of Martin, the courts stated that as well as the above, the following must also be proven in court, in order for duress by circumstance to Succeed:
  1- From an objective point of view, the accused acted reasonably and proportionately to avoid a threat of death or serious harm
  2- Graham (Duress by threats) must also be applied:
  -Due to the circumstance D found himself in, did he act because he
  reasonably believed that they or another would suffer death or
  serious injury?- subjective- upheld in Cairns
  -Would a “Sober person of reasonable firmness”, but sharing the D’s characteristics, in the same circumstance as the D, have responded by committing a criminal offence?(Objective)