DEFENCES - Duress

What kind of defence is duress?
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What kind of defence is duress?
It is a complete defence for most crimes.
Who is the burden of proof on during a defence of duress trial?
The prosecution who must disprove that the D was under duress.
For what offences is duress not available?
Murder (R v Howe)
Attempted murder (R v Gotts)
What case did R v Howe overrule?
DPP for Northern Ireland v Lynch
What are the two types of duress?
Duress by threats
Duress by circumstance
What is duress by threats?
Duress under threat of death/serious injury.
If threat is to kill/harm others, the others must be close family members or people to whom the D is responsible.
Test for the defence of duress?
Graham Test
1) Did the D reasonably believe that he would be killed/injured if he did not comply with the threat?
2) Would a sober person of reasonable firmness have also done as he did?
The first part of the Graham test requires that the duress be..
Serious, unavoidable, imminent and not-self induced
The seriousness of the threat must be of death or personal injury under what case? And threats to property not being duress?
R v Valderrama-vega
What does unavailable and imminent threat mean?
It means that the D must not have been able to inform the police or avoid the crime to get the defence of duress.
Threat needs to be immediate case.R v GillWhat did the House of Lords state in R v Hasan?"The threat had to be immediate or almost immediate"Since R v Hasan which previous cases would probably have failed to get the defence of duress?R v Hudson and Taylor R v Abdul-HussainDoes it matter if there was not an actual threat?It doesn't, as long as the D honestly thought that there was an imminent threat.Under R v Hasan what must the mistake of threat be?Honest and reasonable.What is self-induced duress?Duress as a defence is not available if the D has voluntarily associated with criminals, should have reasonably foreseen that they might be forced to commit a crime under the threat of violence.What will the court take into account during the objective second part of the Graham test? (which is that a sober person of reasonable firmness would do the same as the d)The court will take into account the D's characteristicsDefendant's characteristics caseR v Bowen - low IQDuress by circumstances requires what from the defendant's mindset?Fear of imminent death or serious injuryDuress by circumstances case for fear of imminent death/injuryR v Baker and WilkinsWhat is duress by circumstances mainly used for?For driving offences where D felt forced to commit a driving offence due to circumstances, they had found themselves in rather than because they had been threatened.What has the defence of duress by circumstances been extended to?Possession of a firearm, or hijacking.Case of possession of a firearm for duress by circumstances.R v PommellCase of hijacking for duress by circumstancesR v Abdul-HussainDriving offences casesR v Conway, R v Martin