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The view is taken that you are not criminally culpable
Complete defence - if you successfully raise it, you walk free
You did not have prior intention until forced
Common law defence, there is no duress act.•
You did not have free will/ autonomy
Or that it was overhauledJust like provocation and self-defence, the more time that passes -the less likely you will succeed in raising this defence!
THE BASIC RULE or TEST
Begins with an Irish case - one of the first Irish defences our courts dealt with in a big judgement
Whelan 1934 IRISH CCA
Here, Whelan had received a sum of money to mind, he knew that it had just been taken from a bank. He admitted that he held onto it, but said he acted under violent threats.
CA:Duress is a defence
What is it?'A threat of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance'
The language indicates objective test - would the reasonable person be overwhelmed as to be stripped of autonomy?Not available for murder
Has to be limitations
Overpowering of the will must be operative at the time the crime is committed.
Hurley & Murray AUS 1967A threat that is present and continuing, imminent and impending,
A must have reasonably apprehended that the threat would be carried out.
You can never kill someone because your life is under threatIt excludes self-inflicted duress.
Must be NO SAFE means of escaping the treat
This factor seems to be very subjective…it depends on the facts, what if an attempt to escape threatens you further? Graham UK 1982
A living with his wife and another man in a single relationship. One day he and the other man deicde to kill the wife. One of them said he had no choice as the other man was threatening himObjective test
Because of the fact it is an objective test, the reasonable citizen would not kill someone due to a threat.
But who is the reasonable citizen? Having an objective test here is kind of problematic. Do irish people have more bravery than other people?
Abdul Hussain 1999
Discusses the defence
Airbus hijacked - Sudanese plane on the way to Iraq hijacked and diverted to Stanstead in England by a group of shiad Muslims from Iraq. They fled south Iraq, went to Sudan, they were worried that the Muslims were connection with Hussain. They were worried if they were sent back to Iraq, that they would be executed.
Sought to rely on duress.Trial judge should have left Duress to the jury
Yes, there does have to be an operative and imminent threat
However,Imminent does not mean it has to be capable of happening immediately.
Gleeson IR 2016
Prisoner officer broke the law and claimed he was being threatened by prisoners. He complained that when the judge was explaining the objective test to the jury, he excluded the fact that he was a prisoner. This is unfair.Neither entirely subjective or entirely objective. It has to include an element of both, as it needs to take into account the particular circumstances of the person seeking to invoke the defence.What would a reasonable person do, bearing in mind he is a prison officer.
The court said that this could go both ways and is not necessarily favourable to the AThe jury may take the view that they are more susceptible to pressure, OR that they have been properly trained and that is what they signed up for.
NATURE OF THE THREAT
Death or serious personal injury.
Must come from a PERSON. Not the circumstances.
Circumstantial duress is different.
Does it have to be someone close to you that is being threatened? Valderrama-Vega 1985 UK
One thing they said, was that they were homosexual, and that this fact would be disclosed in
Columbia and this would cause psychological harm/ stress.It HAS to be physical damage
Not psychological threat or damage.
Threat to expose someone to a charge of immorality is insufficient.
Lynch 1975A threat to property is not enough for duress, either
THREAT TO WHO?
WrightThreat to boyfriend sufficient.
Abdul Hussain'imminent peril or death or serious injury to the defendant or:
Those to whom he has responsibility'
Responsibility is an odd word to use. What if someone considers themselves responsible for everyone?
OPPORTUNITY TO ESCAPE
Hurley & Murray
Hudson and Taylor 1971 ENG
2 women had witnessed a violent assault. They were called to the witness stand by prosecution but at the trial they said they hadn't seen anything. This was false evidence. Prosecuted for perjury.
Sought to rely on duress. Prosecution:You were in a courtroom full of police, how could you possibly be under imminent threat within the meaning of duress?
You could not have been in an atmosphere of more protection.
CA:That's true, but you must examine this practically and realistically
Consider - imminent threat does not mean immediate threat.The threat they were under was no less compelling just because it couldn't have been carried out immediately
Once they leave the court room, their protection is goneYou cannot commit a crime to find peace of mind, though
Your will genuinely has to be overborne.
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