Duress by threats

• • If the D has been threatened to commit an offence and there is fear of death or serious physical injury then the defence of duress by threats may be available for the D.
• • X may be able to rely on the defence of duress by threat. This defence does not apply to murder or attempted murder(Howe). Here X has committed... and so the defence is available.
• • The 2 part Graham test needs to be fulfilled for this defence.
• • Firstly, the D must be impelled to act as he did because he reasonably feared death/serious physical injury.
• • The must be a reasonable fear of death or serious physical injury (does not include psychological harm).
• This defence can only be used if the threat is made to:

  1. a member of the D's immediate family - Wright/Martin/Valderrama-Vega
  2. friends - Conway
  3. yourself
  4. a person whose safety the D feels reasonably responsible for - Judicial Studies Board's Direction which were approved in Hasan
• • The threat has to be connected to the offence that the D commits and so there needs to be a nexus between the threat and the nomination of the offence - Cole/Abdul-Hussain
• • The threat must be of imminent death or serious harm e.g. death or serious harm would follow immediately - Hudson and Taylor or 'almost immediately' - Hasan. In Hudson the court took a sympathetic view than Hasan. The court in Hasan said if there is an opportunity to go to the police then it is not imminent enough but Hudson said it can still be imminent if the D is in fear.
• • If there is no actual imminent threat but the D has made an honest and genuine mistake that there is one, the defence would still be available - Hasan.
• • Secondly, the D must respond as a sober person of reasonable firmness sharing the same characteristics of the D.
• if no characteristics are mentioned, just say:

  X's age and possibly gender will be taken into account under Bowen.
• Bowen - characteristics of D that are relevant: Age, possibly gender, serious physical disability, mental illness that makes the D more vulnerable and pregnancy.
• Bowen - characteristics of the D that are not relevant: voluntarily intoxicated or consumed drugs, very low IQ and excessive vulnerability.
• self-induced duress:

  • if the D voluntarily puts himself in a position in which he is likely to be subjected to threats to commit an offence then it is less likely that he will able to use the defence - Sharp and Hasan.
  • Hasan states: if you 'foresee or ought to have foreseen' that your voluntary association with a known criminal involve you being subjected to acts of violence then this is enough therefore can use the defence
• • Intoxication is not relevant to this defence. So, if D is intoxicated and believes that are being threatened to commit an offence, they cannot use duress.
• Conclude - can D plead the defence successfully