Duress of Circumstances

When is this defence available?

Task

Read pg 183-185 14.6-14.6.2 Explain how duress can arise

Duress

How does Duress Arise?

Threats must be:

•Threats•Circumstances

•Serious- Death or serious injury

•Against ; Self, - Valderrama Vega

•Friends, Family - Martin

•possible extend to anyone- Conway

Availability of Defence

How do the courts decide if Duress is available as a defence?

Test Laid down in Graham Subjective test

Objective Test

When the D is compelled to do an act as he did because he reasonably believed he had good cause to fear serious injury or death

If so would a sober person of reasonable firmness sharing the same characteristics as D have responded in the same way

Graham 1982

D a homosexual who lived with his wife and another homosexual man, K. K was violent and bullied D. After both had been drinking heavily, K put a flex around the wife's neck and told D to pull the other end. D did this for about 1 min. Wife died. D claimed he only held flex because of his fear of K. Convicted of murder

Why? What happened in Martin? Does this change the tests laid down in Graham?

No safe avenue of escape

If D is threatened to perform an act but there is an opportunity to escape then Duress will not be available as a defence.

What happened in Gill 1963 pg 186 Is police protection enough to negate defence of

duress? Hudson and Taylor

Imminence of Threat

How close to the crime must the threat be? The threat must be effective at the moment the

crime is committed. Hudson V Taylor But does not mean threats have to be able to be

carried out immediately. Abdul- Hussain 1999 Threat must be to make D commit a specific

crime. Cole 1994

Pg187-188

No Duress when?

Intoxication – If D becomes voluntary intoxicated and mistakenly believes he is being threatened, no Duress

If intoxication not relevant to Duress can use the defence

Self Induced Duress. When can duress be a defence if you voluntarily join an organised gang?

Read Sharp Shepherd and Hasan pg 190.

What is D of C?Where a D may be forced to act because of

surrounding circumstances.

What happened in Willer (1986)

In this case the CA held that the jury should have considered whether the D drove under duress.

Avoiding threat or Serious Injury

Duress of circumstances can be available if it can be shown objectively that the D was acting to avoid a threat of death or serious injury. (Conway 1988).

What happened in Martin (1989)?

What 2 stage test was put forward in Martin (1989)

Pommell (1995)

By this case it became clear that duress of circumstances could be used as a defence to all cases except murder.

What happened in Pommell?

Summary

Duress is a defence based on fact D has been effectively forced to commit the crime

Defence to all crimes but Murder, Attempted murder or possibly Treason.

Originally thought defence for 2nd D in Lynch but then decided not in Howe- Explain why

Duress carried out by threats to self or family can be friend or stranger depends on circumstances Martin, Conway,

Threat must be of death or serious injury- others taken into account with these Valderrama-Vega

2 Stage test Subjective test Was D compelled to act as he did because he reasonably Graham

Create a brainstorm on the problems with the law of duress?

Group Work:

Idiot’s Guide to Necessity!