Duress

The test to decide if someone is under is both subjective and objective?

R v Graham 1982

G claimed he was forced to kill his wife by his gay lover

Subjective

Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death as a result of what X says or does

Objective

If so, would a sober person of a reasonable firmness, sharing the characteristics of D have responded in the same way

Hasan 2005, HL held that D's belief in the threat must be reasonable and genuine.

Makes it partly objective, would ordinary people have believed the threat existed F.

However, the jury is allowed to take into account some of D's characteristics. The relevant characteristics are set out in the following case

R v Bowen

D had low IQ. Took part in theft after threats made.

Characterisitcs Allowed

Physical/ Mental Health

Pregnant

Possibly gender

Age

Serious disability

Not allowed

Self induced

Alcohol, drugs or glue- shifting

Low IQ, Homosexuality, Timidity

Defence unavailable if d has an avenue of escape

R v Gill 1963

D threatened with violence unless he stole a lorry. D had an opportunity to raise the alarm and did not use it so duress not available

R v Hudson and Taylor 1971- Exception

D perjured themselves in court after threats were made. Duress available as police could not give effective protection

Threat Must Be Imminent

R v Abdul-Hussain 1999

The Ds were Muslims who fled from Iraq to Sudan and feared being sent back. They Hijacked a plane, eventually went to the UK

The Peril must be operative on D's mind at the point of committing the act, so that it overbears their will, but execution of the threat need not be immediate

Threat must link to crime

R v Cole 1994

D owed money and was threatened with violence if he did not repay. D robbed a post office. There must be a connection between the threat and the crime. Thought of his own

Not available If D brings situation upon himself

R v Sharpe 1987

D joined a gang of armed robbers but then claimed he was forced to co-operate. D knew they were likely to use violence when he joined so not allowed duress

R v Shepherd

D joined ship lifters but didn't know they were violent. D had no knowledge that the gang was likely to use violence duress was available

Heath 2000

D charged with drug offences, argued duress was a heroin user had become in debt to his dealer who had threatened serious harm

D voluntarily placed himself in a situation it was likely he would be subjected to threats of pressured into community a offence