Duress

• Can be used for all crimes except for Murder, attempted murder and treason

  1. the defence is based on the fact that the defendant efficiantly has been forced to commit a crime. Must be threatened by death or serious injury
• Threat

  ( Valderama vega ) - threat must be to kill or cause GBH

  ( Wright ) - threat must be towards the defendant or someone close to the defendant - immediate family

  (Cole ) - The threat must be related to the crime - there must be a nexus ( link ) between the threat and offence, must mention committing the specific crime
• immediacy = threat must be effective at the moment the crime is committed
• threat must be imminent in the sense it is hanging over them ( Hudson v Taylor )
• if there is a safe avenue of escape, then the defendant should do something about it ( Gill )
• police protection may not always be effective ( Hudson v Taylor )
• ( Graham ) - sets out the 2 part test

  1. was the defendant compelled to act as they did because they reasonably believed they had good cause to fear injury / death
  2. would a sober person of reasonable firmness sharing the characteristics have responded in the same way
• ( Bowen ) Characteristics include - gender, age, pregnancy, serious physical disability, recognised mental illness.
• cannot use the defence if they had voluntarily laid themselves open to threats ( Sharp )
• can get a defence for anything after he was aware of the threat of violence ( Shepard )
• Defence not available where the defendant voluntarily associated themselves with others who are engaged in criminal activity ( Hasan )
• intoxication and duress = if the defendant becomes voluntarily intoxicated and is mistakenly believes he is being threatened then no defence

  if no mistake and intoxication is irrelevent to the duress then yes to defence
• duress of circumstances = The circumstances dictate the crime rather than the person
• Demonstrates the difference between duress and duress of circumstances ( Willer )
• the threat does not have to be real ( Cairns )
• Duress of circumstances available to all offences except murder, attempted murder and treason ( Pommell )
• Necessity = defendant claims that his conduct was not harmful because on a choice of two evils the choice of avoiding greater harm was justified
• must be circumstances which fore a person to act in order to prevent a worse crime from happening ( Dudley v stevens )
• defence is available for civil law ( Re - A )