duress

Question 1

define duress

Answer 1

Arises when an accused claims that a person or set of circumstances forced him/her to act in an unlawful manner – that would otherwise not have been his free choice

Question 2

what are the two types of duress ?

Answer 2

1. Duress from an individual = duress by threats

2. Duress from an emergency situation = duress by circumstance

Question 3

describe the burden of proof in duress

Answer 3

Once raised by the accused the prosecution must disprove beyond a reasonable doubt – the burden does not rest with the accused that the duress existed

Question 4

what is the mens rea for duress ?

Answer 4

The duress creates the mens rea for the offence
The accused knew what he was doing when he broke the law – he made a choice to do it, albeit that that choice was made under duress.

Question 5

what are the facts of the case People (AG) v Whelan [1934]

Answer 5

The accused was charged with receiving stolen property.
He stated that threats of extreme violence had compelled him to act as he did.
He claimed that he accepted it only because he was threatened with violence

Question 6

what were the criteria set out in whelan

Answer 6

1. The threats must be of serious harm or death
2. The threats must be imminent
3. The threats must overbear the will of the accused

Question 7

what are the facts of the case R v Hudson and Taylor [1971]

Answer 7

• The two defendants were called as witnesses to a ballroom brawl
• They recanted their testimony and were charged with perjury
  Their defence – they were threatened with serious violence by an associate of the accused
• The dresser had a reputation for violence and had stared at them whilst they were due to give evidence
• They appealed their conviction to the CA – Q whether the threat was of such immediacy as to overbear the will of the appellants when they gave their false testimony

Question 8

what are the additional limitations on duress

Answer 8

1) The defence of duress is not available to those who voluntarily expose themselves to it (voluntary/self-induced duress)
2) The defence does not apply to murder or attempted murder
3) Not a defence to treason
4) Duress was automatically believed to apply to whenever a married couple committed a crime

Question 9

who must threats be directed at ?

Answer 9

Typically – directed at the accused personally
There is nothing to preclude the accused from acting out of fear for others
LRC (Ire) – threats to a stranger should suffice to constitute duress – drawing an analogy with self defence where an accused is allowed to intervene to protect a stranger

Question 10

what is the view on suicide under duress

Answer 10

The threat of serious harm or death cannot emanate from the accused

Question 11

what are the facts of R v Rodger and R v Rose (1998)

Answer 11

The two were prisoners whose tariff had been extended significantly
They escaped from prison and were caught
They argued that the escape was necessary to prevent them from committing suicide

Question 12

what is the law reform commission view on the defence of duress as a defence to murder ?

Answer 12

• Allow the defence of duress to act as a partial defence to murder would have the advantage of flexibility – the mandatory penalty of life imprisonment is avoided – duress could be taken into account in sentencing
• Not regarded as fully blameworthy as their will was impaired

Question 13

what does the case of say about R v Gotts [1992 the defence of duress as a defence to murder ?

Answer 13

‘the reason why duress has for so long been stated not to be available as a defence to a murder charge is that the law regards the sanctity of human life and the protection thereof as of paramount importance’