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Duress

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by

Claire Turner

on 14 June 2016

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Transcript of Duress

Duress
Duress by Threats
Duress of Circumstance
Graham
Necessity
Hasan
Willer
Compelled to commit the offence by the circumstances that he found himself in
Conway
Approved in
Pommell
Problems
Easy for Defendant to assert, difficult for the Prosecution to disprove.
DPP for Northern Ireland v Lynch
Lord Simon
'your Lordships should hesitate long lest you may be inscribing charter for terrorists, gang-leaders and kidnappers'
Subjective Limb
'was D or might he have been, compelled to act as he did because, as a result of what he
reasonably
believed, D had
good cause
to fear that if he did not so act the coercer would kill him or cause him serious physical injury (or did D have good cause to fear that the circumstances would lead to death or serious injury if he did not so act) and if the answer is in the affirmative...'
Objective Limb
'would a sober person of reasonable firmness
sharing D's characteristics
have acted in the same way as D'
(approved in Howe)
Hasan
Who it should be directed to
the threat must be directed against (or the circumstances must cause D to fear for)
a member of his immediate family
Someone close to him
or a person for whose safety D would reasonably regard himself as responsible
Reasonableness
the jury must have regard to the reasonablenss of the defendant's perceptions and his conduct
Causation
the defence is available only where the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied upon
Evasive action
there was no evasive action D could reasonably have expected to take; and
Self induced duress
D may not rely on duress to which he has voluntarily laid himself open where he knows or ought reasonably to know he might be the subject of compulsion by threats of violence from the associates
Death or Serious Injury
Only available where commits the offence in effort to avoid death or serious injury
Quayle
Threat of pain not injury could not support the defence.
Aikens
Fear being punched in the face was not sufficient
Nguyen
CoA expressed provisional view threat of false imprisonment would not suffice without accompanying threat of death or serious harm.
(contrary to the dicta in Lynch (p354) Howe (p.497) and Steane (p54)
Rv A
Threat to rape would support the defence on the basis that it amounted to a threat of serious injury.
Baker and Wilkins

Anything less than death or serious injury
Fear of Psychiatric Injury
External
Rodger and Rose
Not death or serious injury to themselves
Not the only factor
Valderrama-Vega
Himself
Martin

- suicidal risk of wife
Wright
- Not married, not blood
related
Conway
Driver & passengers
Shayler
No previous connection
Cairns + Martin (David)
- attempt to make entirely subjective
Safi
- reasonable belief doesn't need to be true

Rejected Hasan
Horne
Vulnerability or pliancy not admissible
Hegarty
Sex, age and physical health not emotional instability
Bowen
Sex, pregnancy, physical disability, recognised psychiatric/mental condition
Emery
Inability to resist or stand up to coercer due to PTSD
Flatt
Drug addiction - self induced
Cole
Direct D to commit a particular crime
But specifics such as the very bank, on which street was not required
Abdul-Hussain
CofA - required 'imminent peril of death or serious injury.
Time period between D's act and execution of the threat were relevant facts but not conclusive
Hasan
Lord Bingham
- preferred immediacy to imminence
'It should...be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way to avoid committing the crime with which he is charged'
Hudson and Taylor
Threat carried out after.
Lord Bingham
The unfortunate effect of weakening the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress...I can understand that the Court of Appeal had sympathy with the predicament of the young appellants but I cannot, consistently with principle, accept that a witness testifying the in Crown Court in Manchester has no opportunity to avoid complying with a threat incapable of execution then or there'
Heath
Had the opportunity to escape but chose not to
Fitzpatrick
A person may become associated with a sinister group of men with criminal objectives and coercive methods of ensuring that their lawless enterprises are carried out and thereby voluntarily expose himself to legal compulsion...if a person voluntarily exposes and submits himself... to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid
Lord Bingham
The defendant is, ex hypothesi a person who has voluntarily surrendered his will to the domination of another. Nothing should turn on foresight of the manner in which, in the event, the dominant party chooses to exploit the defendant's subservience...in holding that there must be foresight of coercion to commit crimes of the kind with which the D is charged, R v Baker mis-stated the law.
Availability of the Defence
Howe
No defence to a charge of murder
Gotts
- No defence to attempted murder
Criticisms
Requiring D to be a hero and sacrifice himself or person for whom he is responsible) rather than take another's life
Sacrifice
Quality or quantity
Kill one to save the lives of others
MR Murder
Accident die rather than gbh - entitled to plead duress
Murder
Attempted Murder
Removing a child from the Jurisdiction
R v CS
Reform
Availability
Legislating the Criminal Code (Law Com 218)
Defence to all offences
Murder Manslaughter and Infanticide (Law Com 304)
Defence to all offence, but in relation to murder and attempted murder ihe threat is one of death or life-threatening injury
Burden of Proof
Legislating the Criminal Code (Law Com 218)
Defence should bear the burden on the balance probabilities
Shayler
Cof A held that duress and necessity were one and the same defence. Could only rely on the defence as he was not in a position to identify any external action which created an imminent threat to life and limb of members of the general public
Medical Necessity
F v West Berkshire HA
Dudley and Stephens
London Borough of Southwark v Williams
Re A
Act needed to avoid inevitable and irreparable evil
no more should be done than is reasonably necessary for the purpose to be achieved
the evil inflicted must not be disproportionate to the evil avoided
R (on the application of Nicklinson) Ministry of Justice
Necessity was not a defence to voluntary euthanasia

Hasan
Full transcript