Duress

Duress

Two types - by threats / of circumstances
1. By threats - commit this offence 'or else'.
2. Of circumstances - committing an offence due to the surrounding circumstances, e.g. steal a car to escape forest fire
General defence to all offences except murder, attempted murder and some forms of treason
The elements of duress are: HASAN:
1. There must be a threat of death or serious injury (confirms GRAHAM)
2. That threat must be made to D or his immediate family or someone close to him or someone for whom D would reasonably regard himself as repsonbible
3. D must reasonably believe that he had a good cause to fear death or serious injury
4. His response must be one which might be expected of a sober person of reasonable firmness
5. There must be no reasonable opportunity to escape the threat
6. D cannot rely on threats to which he has voluntarily laid himself open
Was there a threat of death or serious injury?
1. It is probable that a threat to cause serious psychiatric injury could amount to duress: BAKER v WILKINS
Was the threat made to D or someone for whom D would reasonably regard himself as responsible?
1. In WRIGHT, threats against D's boyfriend sufficed
Did D reasonably believe that he had good cause to fear death or serious injury AND was his response one which might be expected of a sober person of reasonable firmness?
1. It was held in BOWEN that when deciding if D reacted 'reasonably' they could take into account these characteristics:
  1. D's age or sex
  2. If D was pregnant
  3. If D has a serious physical disability
  4. If D has a recognised mental illness
Was the crime nominated by the duressor?
1. Someone must have said 'commit this crime or else': COLE
Was there a reasonable opportunity to escape the threat?
1. The threat need not be capable of being carried out immediately, as long as it was still effective at the time D performs the crime: HASAN
2. The defence will not be available were D has a reasonable opportunity to contact the police or escape: GILL
3. When the threat is withdrawn or becomes ineffective, D must stop committing the crime as soon as he possibly can
Has D voluntarily laid himself open to the threats?
1. If D associates with criminals, he will not normally be able to use the defence for any crime he commits due to threats of violence by those criminals.
Duress of circumstances
1. D is forced to commit a crime because he reasonably believes there is a risk of death or serious injury arising from the circumstances in which he finds himself, not because of a threat to commit a specific offence.
2. Applies to all crimes except murder, attempted murder and some forms of treason

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