Duress By Threats

Question 1

What type of defence is duress?

Answer 1

An absolute defence that leads to acquittal

Question 2

What acronym is used to remember duress by threats?

Answer 2

SAACMVO

Question 3

1 - Seriousness

Answer 3

Threats must be serious - only threats of death or serious physical injury to D or certain others will suffice (Hasan).

Certain others includes himself, an immediate relative, or someone D reasonably holds himself responsible for. APPLY

Question 4

Unavoidable Threat

Answer 4

D must have had no opportunities to avoid the threat, and it must be immanent.
- the retribution threatened against D or his family or a person for whom he feels responsible must follow ‘immediately or almost immediately’ on his failure to comply with the threat.

Question 5

Causal Nexus

Answer 5

• There must be a link between the threat made and offence committed.
• The person issuing threat must nominate a particular offence to be committed (Cole) - failure to specify means duress is not available.

Question 6

Mistake

Answer 6

• There may not be any actual threat, but if D makes a mistake and honestly and reasonably believes there is an imminent threat, the defence of duress can be available.

Question 7

Voluntary Exposure

Answer 7

• defence not available when, ‘as a result of the accused’s voluntary association with others engaged in criminal activity, he foresaw or ought to reasonably foresee the risk of being subjected to any compulsion by threats or violence.
• no defence if ‘risk of duress is freely undertaken by mixing with bad company’ (Shepherd)
• if a member of a non violent gang, defence available if at the time violence was not contemplated (shepherd)

Question 8

Objective test (Graham)

Answer 8

Would a sober person of reasonable firmness, sharing the defendants characteristics, have reacted to that situation by behaving as D did?
- Ds characteristics might make him less able to resist threats than a person without those characteristics (Martin)
- The reasonable person can be given some characteristics but not all (Bowen)

Question 9

What characteristics are/are not considered in the Graham objective test?

Answer 9

Yes - age and sex (Bowen), serious physical disability, recognised medical illness (Martin)

No - very low IQ (Bowen), history of sexual abuse not amounting to disorder (Hurst), self induced drug addict

Question 10

Summary Order of Duress by Threats

Answer 10

1 - Seriousness of threats
2 - Against whom?
3 - Avoidable?
4 - Causal Nexus
5 - Mistake
6 - Voluntary Exposure
7 - Objective test/characteristics

Question 11

Full A01 template of duress by threats

Answer 11

With regards to _____ D could raise the defence of duress by threats. It is an absolute defence that leads to an acquittal.

Firstly, the threats must be serious. Only threats of death or serious physical injury to D or certain others will suffice (Hasan). Certain others includes himself, an immediate relative, or someone D reasonably holds himself responsible for. APPLY

Next is an unavoidable threat - D must have had no opportunities to avoid the threat, and it must be immanent. The retribution threatened against D or his family or a person for whom he feels responsible must follow ‘immediately or almost immediately’ on his failure to comply with the threat. APPLY

Causal nexus is the idea that there must be a link between the threat made and offence committed. The person issuing threat must nominate a particular offence to be committed (Cole) - failure to specify means duress is not available. APPLY

Next is in case of a mistake. There may not be any actual threat, but if D makes a mistake and honestly and reasonably believes there is an imminent threat, the defence of duress can be available. APPLY

When looking at voluntary exposure to the threat, the defence is not available when, ‘as a result of the accused’s voluntary association with others engaged in criminal activity, he foresaw or ought to reasonably foresee the risk of being subjected to any compulsion by threats or violence. IN OTHER WORDS, there is no defence if ‘risk of duress is freely undertaken by mixing with bad company’ (Shepherd)
- if a member of a non violent gang, defence available if at the time violence was not contemplated (shepherd)

Finally, we must look to the objective test from Graham. Would a sober person of reasonable firmness, sharing the defendants characteristics, have reacted to that situation by behaving as D did?
- Ds characteristics might make him less able to resist threats than a person without those characteristics (Martin)
- The reasonable person can be given some characteristics but not all (Bowen)