Law Scenarios

Suggestions

Duress - This defence exists where the defendant is put under considerable pressure to commit a crime or face death or serious injury to himself or another for whom he feels responsible – the defendant is faced with a terrible dilemma.

The problem is that the defendant commits the actus reus with the mens rea so the defence takes the circumstances into account.

Duress can be used as a defence to all crimes except murder, manslaughter and perhaps treason.

Gotts (1982), Howe (1986), DPP for Northern Ireland v Lynch (1975).

The defence takes two different forms:

Duress by threats

This consists of direct threats to the defendant to commit a crime or face death or serious personal injury to themselves or another.

Duress of circumstances

This consists of external circumstances that the defendant believes constitutes a serious threat.

There are some similarities to necessity here – see later slides for the overlap with necessity.

Courts have to consider the seriousness of the harm that the accused has been threatened with and the criminal behaviour they commit.

Graham (1982) – 2 stage test:

Subjective test – did the defendant feel he had to act the way he did because he reasonably believed he would face death or serious personal injury.

Objective test – would a sober person of reasonable firmness with the same characteristics as the defendant respond in the same way as the defendant.

The threat must be of death or serious personal injury.

The threat must be unavoidable:

Gill (1963)

Defendant had the opportunity to inform the police between the threat and carrying out the crime so couldn’t use the defence.

R v Hudson and Taylor (1971)

Threat was considered to be imminent as defendants were witnesses in trial where those threatening them were in the gallery despite the fact that there were several police in the court building.

R v Hasan (2005)

This is the current law which takes a stricter approach as in Gill. Here the defendant knew he was involved with a criminal gang so put himself in the way of possible threats.

The threat must be operative at the time of committing the crime.

R v Hudson and Taylor – the defence was allowed as the threat was still operating when the defendants were giving evidence in the court as they believed it could be carried out immediately.

Who must the threat be made to? The defendant themselves. A family member or even close friend:

Martin (1989) Wife threatened suicide if the defendant didn’t continue to drive whilst disqualified.

Self-induced duress: Defendant’s own actions have led him to be placed under the threat so cannot use the defence.

Hasan (2005) – defendant joined a criminal gang so was unable to use the defence when he was put under threat because he should have realised that could happen.