Revision:Duress

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Here are some hints to help you with an examination problem question on the defence of duress.

Remember, duress is a full defence. If raised and not disproved, it will clear the defendant ("D") altogether. However duress is not a defence to murder (R v Howe 1987) or attempted murder (R v Gotts 1992).

FIRST NOMINATE THE CRIME YOU WANT TO USE DURESS AS A DEFENCE FOR. EXPLAIN HOW ALL THE COMPONENTS OF THE OFFENCE ARE THERE.

Now to bring in the defence of duress:

The threat:

• Threat must be of death or serious injury (Hudson and Taylor 1971)

• Physical injury only - not psychological injury (Baker and Wailkins 1997)

• Threat of exposure of sexual immorality is insufficient (Valderrama-Vega 1985)

Duress against whom?

• D personally (Graham 1982; Cairns 1999); or

• Family (Ortiz 1986, Conway 1988, Martin 1989); or

• Persons for whom D feels responsible (Wright 2000).

Criminal conduct:

• Criminal conduct must me directly caused by the threats.

Imminence:

• Threat must be believed to be imminent (Hasan 2005)

• Consideration will be given to whether there any evasive action D could reasonably have been expected to take (e.g. alerting police; However delay in doing so does not necessarily mean defence fails (Gill 1963, Pommell 1995)

• IF FACTS INDICATE THAT D WHEN TO ANOTHER LOCATION TO CARRY OUT THE CRIME: it is unlikely according to the strict approach in Hasan, that the threat will be regarded as immediate due to the temporal and geographical differences between the duress and the crime. The correspondence principle is weak as the duress and the immediacy were not committed at the same time as the actus reus and mens reus of the offence. However if D could argue that D really feared the duressor was following her to ensure D did the crime, this may prove an imminent or almost imminent threat, and it may be regarded as a reasonable perception.

Reasonableness of D’s response to the threat:

• It can be objectively argued that D was impelled to act as D did because, as a result of what D reasonably believed the duressor had said or done, D had good cause to fear that D did not so act the duressor would kill D or cause D harm. Furthermore, it is arguable that a sober person of reasonable fairness, taking account of D’s age and background (including medically diagnosed psychological disorders: R v Emery. Such as battered women’s syndrome) would have responded the same way (R v Graham; R v Howe).

Association with criminals:

• According to the Fitzpatrick doctrine, D exposed HIM/HERSELF to the risk of such threats by voluntarily associating with the duressor so D cannot now rely on the threats as an excuse (Baker and Ward; Ali). Since Hasan, it is sufficient that D foresaw (or ought to have foreseen) the risk of being subjected to ‘any compulsion’ by threats of violence (Shepherd).

• The duress tests are objective - with reference to the reasonableness of the defendant's perceptions and conduct.

If you have any questions on Duress, feel free to contact Tufts