Duress can be by threats or circumstances
Duress is not available for murder or attempted murder
Duress by Threats
- Must be a threat of death or serious injury but can consider cumulative effects of threats (Valderrama – Vega)
- Threat can be to family or friends (Martin)
- Can be to a total stronger (Conway)
Two stage test (Graham)(Howe)
- Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? (subjective)
(Martin) Held, in view of D’s condition, he may have reasonably fear for his mother’s safety
(Hasan) Belief in threat must not only be genuine, it must be reasonable
(Bowen) Low IQ not a characteristic for second part objective test. Can consider:
- Age
- Pregnancy
- Recongised mental illness
- Sex
No safe avenue of escape
- Cannot use duress of has a safe avenue of escape (Gill)
- However, also recognised that police protection cannot always be effective (Hudson and Taylor)
- Threat does not need to be capable of being carried out immediately
- Take into account age and sex
- (Hasan) found ruling for this case too lenient
Imminence of threat
- Execution of the treat need not be immediate
- The peril must be imminent and operating on D’s mind at the time of committing the original act, so as to overbear his will. For the jury to decide (Abdul-Hussain)
Threat can only be specific (Cole)
Intoxicated mistake is unreasonable, thus does not qualify for duress. If there is no mistake then intoxication is irrelevant
Self-induced duress
- (Hasan) Self induced duress cannot be used as a defence where D
- Foresaw, or
- Ought reasonably to have foreseen the risk of being subjected to threats of violence
Duress of circumstances
D was forced to act because of surrounding consequences (Willer). D was under a form of compulsion.
For this defence only (Graham) two-part test required.
(Pommell) defence not available for murder, attempted murder, or some forms of treason.
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