duress by threats

Question 1

defined in AG v Whelan

Answer 1

if a D has been forced to commit a crime against their will because a threat made to them then they may be able to rely on the defence of duress.

Question 2

not a defence for…

Answer 2

murder - R v Howe
attempted murder - Gotts

Question 3

R v Howe

Answer 3

with others, the D took part in torturing and abusing two men who were then strangled. He claimed he took part in the killings because of threats that had been made against him

Question 4

R v Hasan- sets out tests which must be satisfied for the defence to succeed

Answer 4

1. there must be a threat to cause death or serious injury
2. must be directed against the D , their immediate family or someone close to them
3. Whether D acted reasonably in the light of the threats will be judged objectively
4. threats relate directly to the crime the D committed
5. no evasive action could’ve been taken
6. D cannot use the defence if they’ve voluntarily laid themselves open to the threats

Question 5

the threat

Answer 5

has to be of death or serious injury . victim will have to be subject to injury equivalent to GBH

Question 6

R v Valderrama-vega

Answer 6

D illegally imported cocaine. He claimed he had done this because of death threats made by a mafia-type organisation involved in drug smuggling. Threats were to disclose his homosexuality and financial pressures.
jury entitled to look at cumulative effects of all threats- if threat was not of death then the other threats would not be considered

Question 7

R v Hammond

Answer 7

D walked out of open prison because he believed that he would be unable to stop himself causing serious injury to a fellow inmate who was threatening to sexual assault him
Duress not available as evidence was insufficient to show that threat was imminent or immediately likely to have serious consequences

Question 8

threat must be effective at the time the crime was committed but doesn’t mean that the threats need to be carried out immediately

Answer 8

R v Hudson and Taylor- two girls committed perjury as they had been warned by a group and a man with a bad rep that if they identified the D in court they’d be ‘‘cut up’’. they saw the man in court. The threat had to be a ‘‘present’’ threat to neutralise the will of the D at the time of committing the offence

Question 9

threat must be directed against

Answer 9

> the D
their immediate family
someone close to them
someone they feel responsible for

Question 10

did the D act reasonably?

Answer 10

R v Graham test :
1. was the D compelled to act as they genuinely believed in the effectiveness of the threat to cause death or serious injury?

2. would a sober person of reasonable firmness, sharing characteristics of the accused, have responded in the same way?

Question 11

jury allowed to take into account some of Ds characteristics into account

Answer 11

> age - young more susceptible to threats
pregnancy - additional fear for unborn child
serious physical disability - harder to protect themself
recognised mental illness - could include PTSD (R v Martin)
gender

Question 12

Bowen

Answer 12

low IQ is irrelevant and will not be taken into account

Question 13

did the threats relate directly to the crime committed by D?

Answer 13

can only use defence if the threats are made in order to make him commit a specific offence

Question 14

R v Cole

Answer 14

there was insufficient connection between the threat of paying back loans and robbing a bank

Question 15

could the D have taken any evasive action?

Answer 15

defence can only be used where D is put in a situation where they have no safe avenue of escape

Question 16

R v Gill

Answer 16

D claimed threatened unless he stole a lorry. however, there was a period of time in which he was left alone and so could’ve raised the alarm. he had a possibility of a ‘safe avenue of escape’ so he couldn’t rely on the defence

Question 17

Did the D lay himself open to the threats?

Answer 17

D cannot use the defence if he or she voluntarily laid themselves open to the threats; for example, where a D joins a gang and commits some offences but is then forced to commit other crimes which he did not want to

Question 18

R v Sharp

Answer 18

couldn’t use the duress as an offence because he knew they were dangerous when he joined the gang - dangerous armed robberies

Question 19

R v Shepherd

Answer 19

D joined a shoplifting gang, but was threatened with violence when he tried to leave. Defence could only be raised with respect to offences committed after he had been threatened - although criminal they were a non-violent gang

Question 20

intoxication

Answer 20

if D is voluntarily intoxicated and mistakenly believes that he has been threatened, he cannot use duress as a defence. However, if the duress is irrelevant to the intoxication, the D can still use the defence