duress by threats Flashcards
(19 cards)
what is duress
occurs where the D is forced to commit the criminal act by someone else
D is forced to commit a crime because of…
- threats of death / serious injury made to him
where is duress not available as a defence
- murder ( howe)
- attempted murder (gotts)
R v hasan 2005 court ruling
set out points to clarify the tests
1st test
there must be a threat to cause death or serious injury ( valderrama- vega)
points needed to satisfy the first test
- must be effective but not always immediate ( hudson&taylor)
-threat must take effect as soon as crime is committed
why in r v hammond did duress not work as a defence
evidence failed to show the threat was imminent or immediate
2nd test
the threat must be directed against the defendant or their immediate family or someone close to them
points needed to satisfy the second test
person being threatened must be
-the defendant or
-their immediate family or
-someone close to them or
-a person for whose safety they would reasonably regard themselves responsible for
3rd test
whether the D acted reasonably in the light of the threats will be judged objectively ( r v graham - graham test)
what 2 questions are set out in the graham test
- d honestly and feasibly believed life was in immediate danger AND
-would a sober and reasonable person have responded in the same way?
3.1 ( R v bowen) stated what?
the jury are allowed to take some of the defendants characteristics into account
what characteristics can be taken into account
- age
-pregnancy
-serious physical disability
-recognised medical illness
-gender
only apply ones relevant to the scenario
4th test
the threats relate directly to the crime committed by the defendant
points needed to satisfy the 4th test
D can only use the defence if the threats are made in order to commit a specific crime ( r v cole)
5th test
there was no evasive action the d could have taken. duress is not available as a defence if there is a safe avenue of escape
points needed to satisfy the 5th test
must be no time to escape / raise alarm ( r v gill)
if raising alarm would not be effective duress is allowed ( r v hudson & taylor)
6th test
d cannot use the defence if they have voluntarily laid themselves open to threats
points needed to satisfy the 6th test
-where D brought duress on himself defence will fail ( r v sharp)
-joining gang= fail ( r v hassan)
