Law Paper 1 - Section B - Defence Against Duress Flashcards
(13 cards)
What is the defence of duress?
A common law defence based on judicial precedence where the defendant is forced into committing a crime due to a threat of death or serious injury. It can be used for all offences apart from murder or attempted murder.
What is duress of threat?
A situation where another person threatens the defendant with serious violence unless a specific offence is committed. The threat can be directed at the defendant or their friends, family, or even a stranger.
What is required for a duress of threat to succeed?
The threat must involve serious violence or death.
What is the 2-part test for duress of threat?
- Subjective: Was the defendant in fear of death or serious violence? 2. Objective: Would a sober person of reasonable firmness with shared characteristics of the defendant act in the same way?
What characteristics are considered in the objective test of duress of threat?
Age, pregnancy, physical disability, and mental illness.
What must be true regarding escape in duress of threat?
There must be no safe avenue of escape; the defendant cannot escape.
What is duress of circumstance?
A situation where external circumstances cause the defendant to react rather than a direct threat.
What is the 2-part MARTIN test for duress of circumstance?
- Objective: Did the defendant act reasonably and proportionally to avoid the threat of death or serious harm? 2. Would a sober person feel compelled to act in the same way?
What is the necessity defence?
A defence where the defendant acts to prevent a greater evil directed towards themselves or persons they are responsible for.
What must the act be in the necessity defence?
The act must be reasonable and proportionate to the evil.
What is the limitation on the use of the necessity defence?
The threat must be imminent, either effective or ‘hanging over them’.
What must the threat be in the necessity defence?
The threat must be to commit a specific offence.
What happens if duress is self-induced?
If duress is brought on themselves via known association, self-induced duress is deemed and the defence fails.
