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Duress by threats -

Subjective test in Graham

P - threat was pornography not of violence.

D - Good cause to fear death or serious injury - past violence and he has a gun.

Mixed threat - Valderama Vega

Objective test - Characteristics? PTSD (Emery) + woman )Bowen.

Evasive action - Reasonable person would have gone to the police/women's refuge.

Timing -

P - immediate? He isn't with her when she carries out the shooting.

D - imminent threat (Adbul Hussain). Hudson & Taylor.

Self induced =

Hasan - surrendered her will to the domination of the another. She knows when she marries him he is violent and carries out crimes. she has therefore volutarily exposed herself to his domination.

D - aim relationship was hopefully love and affection not to commit crimes. Distinguished. Rely Lady Hale dissenting judgment in Hasan.

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Fred shooting Phil - offence robbery satisfied

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Fred shooting Phil - offence robbery satisfied

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Duress - threats

Graham test - subjective - threat to him. If he didn't carry out the threat he would break his legs. Tom has a gun - therefore good cause to fear serious injury

Objective test - Stress. Recognised psychiatric condition (Hegarty; Bowen - not emotional instability)

Evasive action

P - Could have phoned the police. It was a phone call, he wasn't with him.

Hasan - Lord Bingham - 'immediate' or 'almost immediate'. Had the opportunity (Heath)

D - Hudson & Taylor - he would have been attacked had he not gone through with the threat as soon as they were together. Successful? Lord Bingham - unlikely as it weakens the requirement for immediacy.

The threat was immediate as Tom turned up with a gun.

Self Induced duress

Working for a local gang. Hasan - '...voluntarily surrendered his will to the domination of another. Nothing should turn on foresight of coercion to commit crimes of the kind with which the D is charged...'

Refusal to help initially? - Fitzpatrick - as he has joined the gang knowing of their 'criminal enterprises' the fact he subsequently is 'refusing to help' is irrelevant even if he committed the crime unwilling or his continued association is unwilling.

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Duress Necessity Hasan Shayler Duress by Threats Duress of Circumstance Cole Cof A held that duress and necessity were one and the same defence. Could only rely on the defence as he was not in a position to identify any external action which created an imminent threat to life and

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Fred had been working for a local gang as a fence (a person who passes on stolen goods) for stolen goods but had recently refused to help them as he had begun to suffer from stress which had made him excessively nervous.

Fred had a phone call from the leader of the gang, Tom, telling him he was expected to “help out” in threatening a fellow gang member, Phil, who was refusing to cooperate. Fred was scared but agreed as Tom said that if he didn’t he would break his legs. When Fred turned up to threaten Phil he was handed a gun by Tom and told to kill Phil. Fearing for his life, Fred shot Phil in the arm. Phil did not die but was seriously injured.

When Fred returned home, he decided the only way to escape would be to leave the country – and for that he needed money. He told his wife Dora that she was to go to the local Post Office and – using the gun he still had – threaten them into handing over the cash on site. Dora refused, but Phil threatened to expose the fact she had posed for pornographic images. Dora was scared, of both the exposure threat and Fred as he had been violent towards her on several occasions.

Dora held up the local Post Office. Both Fred and Dora were arrested before they left the country.

Discuss whether the defence of duress is available for Fred and Dora.

(Assume the elements of armed robbery have been made out)

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Lady Hale's dissenting judgment in Hasan

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Lady Hale's dissenting judgment in Hasan

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77. The first is that the cases tend to talk about exposing oneself to the risk of “unlawful violence”. That, it seems to me, is not enough. The foreseeable risk should be one of duress: that is, of threats of such severity, plausibility and immediacy that one might be compelled to do that which one would otherwise have chosen not to do. The battered wife knows that she is exposing herself to a risk of unlawful violence if she stays, but she may have no reason to believe that her husband will eventually use her broken will to force her to commit crimes. For the same reason, I would say that it must be foreseeable that duress will be used to compel the person to commit crimes of some sort. I have no difficulty envisaging circumstances in which a person may be coerced to act lawfully. The battered wife knows very well that she may be compelled to cook the dinner, wash the dishes, iron the shirts and submit to sexual intercourse. That should not deprive her of the *512 defence of duress if she is obliged by the same threats to herself or her children to commit perjury or shoplift for food.