Duress of Threats Flashcards
(44 cards)
What is DoT
D has committed an offence, but he has done so because he was threatened by X with death or serious injury. So, while we do not agree with the conduct
How has DoT developed
The defence has developed at common law, and remains uncodified
What is the argument by Bingham in Hasan about the restrictions placed on DoT
Bingham: where courts making policy choices about the elements of the defence, will tighten the defence rather than relaxing it. Bingham argues if feel sorry for person under duress, the way to help is give a reduced sentence after convicted, rather than to give them a defence. The courts are tough
What does Hale argued about DoT in Hasan
Duress by threats is a defence capable of being manipulated by criminals, in particular gang members and terrorists: ‘readily raised by the least deserving of people but difficult for the prosecution to disprove’. (Baroness Hale)
What are the two questions for the jury
1) Was the defendant compelled to act because, as a result of what he reasonably believed the coercer had said / done, he had good cause to fear that he would otherwise be killed or seriously injured?2) Have the prosecution made it clear that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded in the same way? (Graham (1982) 74 Cr App R 235, approved in Hasan)
What must the threat be
To found a plea of duress the threat relied on must be to cause death or serious injury’ (per Lord Bingham, obiter, in Hasan)
Which case said lesser threats will not do
R v Singh: a threat to expose morality
Threats to expose sexual immorality
Valderama Vega
Threats of imprisonment are not sufficient
Dao: D caught in a cannabis factory. But he claimed to have been locked in and forced to work there, although weak evidence. CA thought because evidence weak the conviction was safe, but said there would have been strongly disinclined to accept a threat of false imprisonment could ever suffice.
Threats of physiological harm insufficient
Baker: - the CA refused to extend the scope of the defence to cases where D feared serious psychological injury.
Would rape suffice
Yes
Does the perceived threat need to be real?
Perceived threat need not exist provided D reasonably believes it to: Safi
Facts of Safi
a defence of duress of circumstances, the same rules apply as they do to duress. These D in this case hijacked an aircraft fearing they would be killed or tortured if they stayed in Afghanistan. P said there must be proof of a threat, but CA held no, as long as D reasonably believes that such a threat exists the formula used in Graham. Graham obiter but shows the line the courts taking, the same view in the HL in Howe.
Suggestions that the test to mistake should be subjective in what case?
Martin (David): The D committed two robberies and claimed he was under duress. But may have been mistaken, he had an illness that made him more likely to perceive threats. The CA upheld his conviction but there are dicta in the case saying that a subjective honest mistake would have been better.
Rogers: went further, duress of circumstances case where D was drunk driving but he said it was to escape from a threatening neighbour. Judge Brooke, said the test for mistake was a subjective test and honest mistake was enough and that Graham was wrong. Bold in the sense that he should have been bound by what had been said earlier as in the divisional court.
Where was the objective test favoured
Hasan although this was obiter
Test for a person of reasonable firmness
-Graham: public policy requires D display the steadfastness of the ‘ordinary’ and ‘sober’ citizen in his situation. Reasonable firmness is a sober person, but can take into account other characteristics.
Facts of Hurst
D was a young woman who imported cocaine. She said she was under the influence of her ex and there was clear evidence that she had suffered abuse as a child and was unusually submissive. CA thought this amounted to saying that she was incapable of displaying reasonable firmness, so as long as an objective element to the standard, cannot see how person of reasonable firmness can be associated with person who lacks reasonable firmness. Objective test she cannot satisfy.
test from Hurst
an objective test, the reasonable person should not be invested in characteristics of a personality which lacks reasonable firmness
Bowen
relied on his low IQ which made him vulnerable. The court held that the mere fact of being more pliable, vulnerable, timid or susceptible to threats not generally relevant, you cannot rely on personal factors which simply go to make you more pliable or susceptible to threats. Increased susceptibility due to self-induced abuse (through alcohol or drugs) not relevant.
In Bown what was it held that D could rely on in terms of characteristics
- But increased susceptibility due to age, (possibly) sex, pregnancy, serious physical disability, recognised mental illness or psychiatric condition may be relevant.
Baroness Hale in Hasan, describing herself as a ‘reasonable but comparatively weak and fearful grandmother’
Emery
PTSD and learned helplessness being relevant characteristics so tension to how far one can go in reasonableness.
Martin (David)
Mental illness and injured leg. CA thought both were relevant to the question to go to the jury.
CA approved direction including the following in relation to duress of circumstances:
Why is DoT more circumscribed than self-defence?
Duress is more circumscribed than self-defence, probably because in self-defence the force is directed at an aggressor, which is not a wrongful choice, but in duress cases V is an innocent third party – usually D makes a (coerced) decision to do wrong.
Who must be the target of the threat
The target of the threat must be D or ‘someone for whose safety [D] would reasonably regard himself as responsible’ (dictum of Lord Bingham in Hasan; Brandford
