1. Duress by threats and duress by circumstance

2.  D is forced to perform the criminal act by someone else  Two types: Duress by threats and duress by circumstances  The offence committed which duress provides a defence to is one which the law views as voluntary but which the defendant should not be held responsible for

3. 1.Was the D impelled to act as he did because he feared death or serious physical injury ? 2.If so, did he respond as a sober person of reasonable firmness, sharing the characteristics of the defendant, would have done?

4.  The nature of the threat  The threat must be made in connection to the offence committed  The characteristics of the D  The effect of any intoxication  The immediacy of the threat and possibility of escape  Was the duress self induced?

5.  Graham “feared death or serious physical injury”  The threat must be of serious physical harm however minor the offence to be committed  Will be no defence of duress if the threat is towards property (Could be self defence)

6.  What amounts to serious physical injury is unclear from the case law  Not psychiatric harm- Baker and Wilkins  Threat of severe pain without violence would be insufficient- Quayle

7.  Not all threats which may be blackmail can be used to invoke the defence, e.g. threats to reveal homosexuality  Threats which do not form part of the defence are merely mitigating factors for sentencing, this applies even if they increase the pressure on the defendant to commit the crime- Valderrama-Vega

8.  Valderrama-Vega- drug smuggler threatened with serious injury. Also under financial pressure and had been threatened with disclosure of his homosexuality. This latter part could not be used as part of the defence.  Threats can also relate to a family member or someone whose safety the D is responsible for- Valderrama- Vega (also direction approved in Hasan 2005)

9.  The threat must be specific- Cole The D robbed building societies. Threat was to harm him if he did not repay money owed.  The threat related to consequences if the money was not repaid, not if he did not rob the building societies

10.  Case law does not establish how close the threat must be  Would a threat to rob a bank be specific enough or does it need to a particular bank?

11.  Relates to the second part of the test "did he respond as a sober person of reasonable firmness would have done?”  Bowen - court set out characteristics that would be relevant, those which would definitely be taken into account are:  Age  Sex  Physical health or disability  Pregnancy  Recognised mental disorder

12.  Characteristics which would not be taken into account:  D being unusually timid  Low IQ  Homosexuality  Drug or alcohol addiction

13. Voluntary is not relevant to the defence- Bowen Involuntary might be if it makes D more vulnerable

14.  The fear of death of serious harm must be immediate  Hudson and Taylor Ds were called as witnesses in court but failed to give true evidence as they had been threatened with serious injury if they did, were allowed to use the defence as one of the people making the threats was in court while they gave evidence

15.  Disapproved in Hasan as the Ds had the opportunity to go to the police  Abdul-Hussain used in this case even though the threat of death was not immediate as the threat of death was overbearing on the mind of the D  Gill- defence will not usually be available if the D had the opportunity to contact the police

16.  Where the D voluntarily puts himself in a position where he is likely to be subject to threats the duress is less likely to be available to him  E.g. joining a gang, taking part in crime  Sharp D had agreed to take part in robbing a post office, he tried to back out before entering, one of the other Ds who threatened to shoot him if he did not take part. The defence was not available as he had agreed to take part in the first place and had robbed a post office previously with the same group of people

17.  Duress is an excuse so its existence does not necessarily result in an acquittal  The decision is left to the jury  The D always has the choice to not commit the crime, the D is more concerned with the threat than committing the crime

19.  The rules are mainly the same as for duress of threats with some additions

20.  Martin (1989) two part test for the jury to decide:  Was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious injury would result?  If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?

21.  Action which would only be taken given the serious nature of the circumstances  Conway - D had been attacked by two men whilst in his vehicle a fortnight previously saw two men approaching his car, he drove off recklessly as he feared another attack. In reality the men were plain clothes police men. Defence was successfully used.

22.  Defence not only limited to driving offences- Pommell

23.  D could use the defence of duress (by threats/ of circumstances) because…  Write out the test (Graham or Martin) do not try to answer it at this point at all  Go through all the relevant elements (nature of threat/ characteristics/ etc…)  Go back and answer the test- don’t write it out again just refer to the first part and the second part  Talk about outcome

24.  Until recently, Dave had been Gina’s partner, and he was very upset that Gina had now begun to live with Fred. When he discovered that Eric had been invited to Fred and Gina’s engagement party at Fred’s house. Dave threatened to “beat up” Eric unless Eric took the opportunity to smash the engagement presents brought by the guests. Eric was very frightened of Dave and he agreed to do so.  Discuss whether Eric can use the defence of duress

25.  In particular, I want you to focus on:  Possible prior association between Dave and Eric  The threat of death or serious injury  Possibility of avoiding the implementation of the threat  Application of the objective test

26.  Until recently, Dave had been Gina’s partner, and he was very upset that Gina had now begun to live with Fred. When he discovered that Eric had been invited to Fred and Gina’s engagement party at Fred’s house. Dave threatened to “beat up” Eric unless Eric took the opportunity to smash the engagement presents brought by the guests. Eric was very frightened of Dave and he agreed to do so.  Discuss whether Eric can use the defence of duress