Duress

• duress


  Is taken to main pressure to do something as a result of a threat
• Cannot be used as a defence to murder (Howe) or attempted murder (Gotts). This is true even when the D is young (Wilson)
• 6 parts to defence

  • must be a threat to cause death or serious injury
  • Must be directed against the D or his/her immediate family or someone close to her/him
  • Did the D reasonably?
  • The threats must relate to the crime committed
  • There was no evasive action the D could’ve taken
  • Cannot be used if the D voluntarily laid himself open to the threats
• The threat

  The threat has to be death or serious injury

  R v Valderrama-Vega; the cumulative effects of all the threats should be considered by the jury
• R v Hudson and Taylor

  • court of appeal ruled that a present threat neutralises a defendants will and if it remains over them at the time of the defence can be used
• Against whom must the threat be made

  The d or immediate family, someone close, persons safety that the d is responsible for.
• Did the d act reas

  1)was the d compelled to act

  2)would a sober person of reasonable firmness, sharing characteristics of the accused act in the same way
• Did the defendant act reasonably

  Graham; d’s will to resist has been erased by the voluntary consumption of substance is taken into account
• Did the defendant act reasonably?

  Bowan; sets out characteristics

  1. Age; very young or very old could be more susceptible to threats
  2. Pregnancy; additional fear of the safety of an unborn child
  3. Serious physical injury; harder to protect themselves 
  4. Recognised mental illness or psych. Disorder
  5. Gender
• Did the threats relate directly to the crime

  • The defendant can only use a defence if the threats are made in order to make him/her commit a specific offence.
  • Cole; there was an insufficient connection between the crome and the threat
• Was there any evasive action the d could have taken


  Dresses can only be used as a defence if the defendant has no safe escape
• Was there any evasive action that defendant could’ve taken?

  Gill; period of time where he was left alone and could have raised the alarm
• Was there any invasive action that defendant could’ve taken?

  Hudson v Taylor; even when d had the opportunity to go to the police, they may have been too scared of the consequence he would not have taken it
• did the defendant lay himself open to any threats?

  R v Sharp:

  Where a person has voluntarily and with knowledge of its nature join a criminal organisation organ which he knew might bring pressure on him to commit an offence. I wasn’t active member when he was put under such pressure he cannot awail himself of the defence of duress
• Did the defendant lay himself open to any threat?

  hassan:

  The defence for success requires a fret to cause death or serious injury, directed against the defendant, objectively judging reasonableness of the defendants actions, direct relation to the crime, no evasive action, and the defendants voluntary openness to the threats
• Graham Test


  . The first stage is mainly subjective and ask: Was the defendant compelled to act as he did because reasonably believed he had good cause to fear serious injury or death? The second stage is mainly objective and asks, if so, would a sober person of reasonable firmness, sharing the characteristic of the accused, have responded in the same way? 
• R v Shepherd. The appellant was a member of a gang of shoplifters. He tried to leave but was threatened with violence against himself and family if he did not continue. He was charged with burglary and the trial judge withdrew the defence of duress from the jury and he was convicted.