duress of circumstance Flashcards
(8 cards)
what is duress of circumstance?
In this defence it is the circumstance that dictates the criminal behaviour rather than a person.
There are several cases that highlight the circumstances this can be used in.
R v Miller (1985)
D and a passenger were driving down a narrow alley when their car was surrounded by a gang of youths who threatened them. D realised that the only way to get away from the gang was by driving on the pavement. He did this quite slowly (about 10 m.p.h.) and having made his escape he drove to the police station to report the gang.He was charged and convicted of reckless driving for having driven on the pavement.
The Court of Appeal allowed his appeal and said that the jury should have been allowed to consider whether the defendant drove ‘under that form of compulsion, that is, under duress’.
R v Conway (1988)
P had been shot at by two men a few weeks earlier. D’s car was stationary when P saw two men running towards the car. He thought they were the two men who were after him (in fact they were plain-clothes policemen).He yelled at D to drive off. D did so very fast and was charged with reckless driving. The trial judge refused to leave duress for the jury to consider and D was convicted.On appeal the Court of Appeal quashed his conviction and ruled that a
defence of duress of circumstances was available if, on an objective standpoint, the defendant was acting in order to avoid a threat of death or serious injury.
R v Martin (1989)
D’s wife became hysterical and threatened suicide unless D drove her son (who was late and at risk of losing his job) to work. D had been disqualified from driving but he eventually agreed to drive the boy to work. He was convicted of driving while disqualified.
On appeal it was ruled that duress of circumstances could be available.The same two-stage test put forward in Graham (1982) applied.
So the tests were:
Was the defendant compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death?
If so, would a sober person of reasonable firmnes, sharing the characteristics of the accused have responded in the same way?
R v Pommell (1995)
D was found by police at 8 a.m. lying in bed with a loaded sub-machine gun. He told police that at about 1 a.m. he had taken it from another man who was going to use it ‘to do some people some damage. D said he had intended getting his brother to hand the gun in to the police that morning. At his trial for possessing a prohibited weapon the judge ruled that his failure to go to the police straight away prevented him having any defence and D was convicted.
The Court of Appeal confirmed that the defence of duress of circumstances was available for all offences except murder and attempted murder and some forms of treason. D’s conviction was quashed and the case was sent for retrial.
R v Cairns (1999)
V threw himself across the bonnet and windscreen of D’s car. Several of V’s friends were nearby shouting and D felt threatened. D drove off with V on his bonnet and some of V’s friends following. These friends were in fact trying to help rather than threaten D. When D braked for a speed hump, V fell under the car and was seriously injured. At the trial the judge directed the jury that they had to consider whether D’s actions were ‘actually necessary. D’s conviction was quashed as he reasonably perceived a threat of serious physical injury or death.
This case considers whether there was an actual threat to the defendant or just a perceived threat.
It was decided that it was enough for the defendant to believe there to be a threat of serious injury or death. This was later shown in R v Abdul-Hussain (1999)
R v Abdul- Hussain (1999)
The defendants, who were Shi’ite Muslims, had fled to Sudan from Iraq because of their religion and the risk of punishment and execution. They feared that, when they landed, they would be sent back to Iraq.
They hijacked the plane which eventually landed in the UK. The defendants were charged with hijacking and pleaded duress of circumstances. The trial judge decided that the danger they were in was not sufficiently ‘close and immediate’ as to give rise to a ‘virtually spontaneous reaction’ and he ruled that the defence could not be considered by the jury.
The defendants were convicted and appealed.
The Court of Appeal quashed their convictions, holding that the threat need not be immediate, but it had to be imminent in the sense that it was hanging over them.
COA ruling in R v Abdul-Hussain
The defence may be used for any offence that is an appropriate response to the danger posed by the circumstance.
There must be immediate peril of death or serious injury to the defendant, or to those for whom he or she has responsibility.
The peril must operate on the defendants mind at the time of committing the otherwise criminal act, so as to overbear his or her will; this is a matter for the jury.
Execution of the threat need not be immediately in prospect.
There is no avenue of escape.
