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Duress lecture 9/03COMMON LAW OFFENCE
GENERAL DEFENCE, but not to AM, murder or treason
If successfully pleaded= COMPLETE defence
D must aduse SOME EVIDENCE of duress then P has to prove BRD that it does
NOT apply
AR and MR left intact ‘where duress is established it does not ordinarily operate to
negative any ingredient of the crime’ Lord Bingham in Hasan 2005
Can eb a defence to conspiracy to murder – Ness 2011 – is much more removed
from AM and murder, further away from the act of killing.
Duress by threat and duress by circumstances
Unless you do this, I will do this to you…
Is a defence, because D commits an offence due to feeling he has no choice
Can be seen as an excuse or a justification
Does the threat overcome D to the extent that his actions can no longer be seen as
voluntary? (excuse), or
Is it that D is executing a choice- be killed or be harmed OR harm this person?
(justification)
It evaluates D’s conduct from a moral point of view
Defence is based on a moral evaluation of Ds conduct- e.g. Abdul-Hussain 1999-
hijacked a plane to travel from Sudan to England on a basis he feared he would be
sent to Iraq where he might eb tortured.
The courts have tried narrowing duress- ‘carefully defined’ Brandford 2019 and
‘closely circumscribed’ in Riddell 2017
3 important cases:
Graham 1982
- D living with wife and a homosexual man (King) who secretly in a relationship
with King (violent and jealous and wanted to kill the wife) so took electric flex
and wrapped round her neck and King told Graham to pull it (killing wife) so
both charged with murder and Graham pleaded duress (in this time was not a
defence to murder) but curt said the threat from King was not sufficiently
GRAVE (level of threat needs to be high)
Hasan (approved earlier test from Graham)- D was a driver. Claimed he was under
duress whilst doing burglary)
Howe 1987
- On order of 35 y/o man in the group, he killed someone (duress is NOT.
Defence to murder or AM)
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