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Duress - Coggle Diagram
Duress
Duress of circumstances
First D must have been forced to act as they did, because of the threat of death or serious injury to himself or others (Cairns). The threat can come from a person or another external source (Quayle). This defence can be used against all offences (Willer; Pommell; Shayler)
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D must have felt compelled to commit the offence because of the fear of death/serious injury due to the circumstances he finds himself in (subjective). D must honestly believe the threat will be carried out immediately. Even if D is mistaken as to the seriousness of the threats the defence can still be considered providing D acted reasonably in the circumstances he believed to exist; special characteristics of D can be taken into account eg. mental conditions (Martin (DP))
-The jury must be satisfied that a sober person of reasonable firmness, sharing some of D's characteristics would have also carried out the offence in the same circumstances (objective). Some of D's characteristics can be attributed to the reasonable person eg. age, sex, serious disability, pregnancy. Vulnerability, timidity and low IQ will be discounted (Bowen)
If D had a safe avenue of escape and therefore could have avoided committing the offence by seeking protection the defence will fail (Gill). However things like age can be considered (Hudson and Taylor). The threat must exist at the time D committed the offence, it doesn't have to be immediate but must be imminent in the sense of that it was hanging over them at the time they committed the offence (Abdul-Hussain).
I the threat has passed the defence will fail (Davis; Pittway), however if there were possible explanations for the delay, the jury will decide whether the defence can succeed (Pommell)
If D joins a gang known to be violent, the defence will fail (Sharp) but if D joins a gang that has no prosperity for violence, the defence can succeed (Shepard). It is not whether D knew he might have to engage in criminal activity, it is whether they should have know (Hasan)
Duress by threats
There must be a threat of death or serious injury directed at D, a close family member or someone he could be reasonably be regarded as responsible for (Wright). The threat can arise from something said or done and the jury will decide if this sufficiently serious.
Death/Serious injury need not be the only motivating factor for D committing the offence but it must exist (Valderama-Vega). The offence must also be clearly specified (Cole)
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-D must have felt compelled to commit the offence because of the fear of death or serious injury, this is judged subjectively. D must honestly believe the threat will be carried out immediately. Even if D is mistaken as to the seriousness of the threats the defence can still be considered providing D acted reasonably in the circumstances he believed to exist; special characteristics of D can be taken into account eg. mental conditions (Martin (DP))
-The jury must be satisfied that a sober person of reasonable firmness, sharing some of D's characteristics would have also carried out the offence in the same circumstances (objective). Some of D's characteristics can be attributed to the reasonable person eg. age, sex, serious disability, pregnancy. Vulnerability, timidity and low IQ will be discounted (Bowen)
If D had a safe avenue of escape and therefore could have avoided committing the offence by seeking protection the defence will fail (Gill). However things like age can be considered (Hudson and Taylor). The threat must exist at the time D committed the offence, it doesn't have to be immediate but must be imminent in the sense of that it was hanging over them at the time they committed the offence (Abdul-Hussain).
Necessity
Rarely a defence; not applicable for murder or attempted murder (Howe; Gotts), specifically in relation to necessity the defence was denied in Dudley; Stephens.
Necessity was permitted in Re A, which allowed for the separation of conjoined twins.
Re A makes it clear necessity will only succeed where:
- The act was necessary to avoid an inevitable evil
- The evil inflicted was not disproportionate to the evil avoided
General and complete defence. It is, however, not available for murder or attempted murder (Howe; Gotts)
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