ND: Duress By Threats Flashcards
(17 cards)
R v Baker
Threat of death/serious injury
A threat of psychological injury will not suffice
R v Howe
Threat of death/serious injury
The threat must be so convincing, a person of reasonable firmness with D’s characteristics would have given in
R v Hasan
Threat of death/serious injury - the threat must be objectively reasonable and subjectively genuine
Imminence - the threat must be, or believed to be, immediate or almost immediate
R v Bowen
Threat of death/serious injury
In considering D’s characteristics, pregnancy, serious physical disability, age, gender or recognized mental illness may be relevant (low IQ will not)
R v Gill
Safe avenue of escape - D had reasonable opportunity/safe avenue of escape to avoid committing the crime (couldn’t rely on duress)
Imminent danger - defence of duress is only available if threat is immediate or almost immediate
R v Hudson and Taylor
Safe avenue of escape
Duress can apply even if the threat is not immediate, as long as the threat is effective and there’s no realistic safe avenue of escape
R v Quayle
Threat must be effective and operational
Threat must be ‘an imminent danger of physical injury’
R v Cole
Nexus
There was no threat or duress regarding the offence D committed
R v Sharp
Voluntary association
Lord Lane CJ: ‘where a person voluntarily and with knowledge of its nature joined a criminal organization which he knew might bring pressure on him to commit an offence… he cannot avail himself of the defence of duress’
R v Shepherd
Voluntary association
A gang of shoplifters is very different to a criminal organization or gang of armed robbers. The defence was available.
R v Howe
Availability
The defence was refused for murder as one person’s life is not worth more than another’s
R v Gotts
Availability
There was no defence to attempted murder
R v Valderrama-Vega
Type of threat
All threats can be considered it must contain a threat of death/serious injury.
R v Wright
Personal responsibility for another
Persons to whom the threat is made include those outside of immediate family
R v Batchelor
Failure to seek safe avenue of escape
D could have sought police protection over over 2 years, but didn’t, so threat wasn’t imminent or immediate
R v Branford
Indirect threats
The threat was vague and lacked imminency so D had ample time to go to police
Duress by threats plan
Where the D argues that they were forced to commit a crime due to a direct threat aimed at themselves or a family member to whom they’re responsible
Common law based - ‘founded on a concession to human frailty’ (where a person’s will is overcome by threats) - so if D hadn’t been threatened, they wouldn’t have committed the offence
Available to all crimes under duress, other than murder/attempted murder. Application is reluctant as D must prove they couldn’t have walked away or sought help - R v Howe, R v Gotts
Rules:
- Threat of death or serious injury - R v Baker, R v Howe, R v Hasan, R v Bowen, R v Branford
- Can be a combination of threats, but the threat of death/serious injury must be present and play a major part in D’s rationale for committing the crime - R v Valderrama-Vega
- The threat can include the D, a close family member, or someone they are responsible for - R v Wright
The two-part Graham test established in R v Graham must be satisfied:
1) Was the D compelled to act because they reasonable believed they had a good reason to fear death/serious injury?
2) Would a sober, reasonable person sharing the same characteristics as the D have acted in the same way?
More rules:
- If there’s a safe avenue of escape, this must be pursued, although there may be exceptions - R v Gill, R v Hudson and Taylor
- The threat must be effective and operational when the D carries out crime and threat of death/serious injury must be ‘an imminent danger of physical injury’ - R v Quayle, R v Hasan
- There must be a nexus (connection) between the crime nominated and the crime committed - R v Cole
- The defence will usually fail if D voluntarily associates with people who are known to make threats - R v Sharp, R v Shepherd, R v Batchelor
Conclusion - if successful, defence will be available.
