Duress

Common law defence
# No statutory provision
# Very little case law, very rare defence
# Complete defence
# Unclear if will constitute defence to murder

Leading Irish case
# Caught with money from bank robbery. Took the proceeds due to threat of life. CCoA held: 'if threat of immediate death or serious personal violence, so great as to overbear the ordinary power of human resistance'. Timeline and immediacy emphasized. Free will must be overborn at time of crime.

There must be a:
1. Immediate

2. Threat of death or serious personal violence

3. which cause one's will to be overborn
(4. Ordinary power of human resistance=reasonable man test)

Good terminology. Threat must be: Present, continuing, imminent and impending, hanging over you like a cloud, also describes person of ordinary firmness. Would all people react in the same way to the threat. How would we expect people to react, standard of firmness? Also talked about safe retreat from situation, but safe from who's point of view?

Family of 2 men, 1 woman. Men decides to kill her and strangles her with phone cord. One claims duress, court confirmed 'would the reasonable man have joined in?'

Airplane hijacked and diverted to Stansted. People aboard Shia Muslims from Iraq. Left regime due to danger of faith to avoid death. First fled to Sudan but sent back. So to escape, hijacked plane flying from Sudan to Jordan. Wanted to claim asylum in UK. Imminent threat? CoA: Imminence a requirement but concept may be perceived differently, up to jury to decide. Geographic distance may be a factor in deciding the imminence of the threat but may no automatically make defence unavailable.

No Irish Authority.
R v Z - HoL, jury must consider would the reasonable person believe the threat to be real?

Baker (Threat of psychological harm not enough)
DPP for NI v Lynch (Threat to damage property not enough either)
Valderrama-Vega (Enclosing information or expose immorality not enough)

R v Hurley and Murray (third party may ground the defence, de facto wife here)
Abdul Hussain (threat towards defendent or 'those to whom he has responsibility'

Love Thy Neighbour-principle

Will really overborn if able to escape?

R v Hudson & Tyler (2 woman accused, living in bad part of town, witnessed crime and told police. Called to trial and claimed memory lapse as scared of accused family. Charged with purgery. Prosecution argued not imminent threat as court room full of police officers. Court took view that one has to look at how world actually works. D has to take bus back to where accused's family lives. Imminent may not work here. Very practical judgment. Two very young girls.
Heath (Shows that the situation and character of the D may be important. D smuggled 'schampoo' to Bristol due to drug debt, court held that he had plenty of time to stop at police station and hand over drugs.

AG v Whelan (defence inapplicable to murder)

DPP for NI v Lynch (defence open for aiding murder which proves kind of condusing in IE as all accomplices may be convicted of murder)
DPP v Dunne (very recent case. CoA argued that if duress should be open for murder, it should be decided so by SC as CL defence in a question of point of law of public importance)

# If court permitted defence here, court would permiss the people society least want to be able to use the defence to rely on it
# Courts want to discourage people from involvement in crime and therefore will disallow the defence in such instances

Accused 19 y/o, joined IRA as civil war was coming. Assisted with armed robbery which killed post office employee. Court held duress never available for organised crime

Person in gang argued he didn't have a chance but to join as grew up in the area. Court held even if true, could never grant duress in such circumstances

Caught with lot of cocaine, in debt to dealer. Court held becoming in debt to dealer voluntary act so no duresss

# Old CL presumption that wife only committed crime due to husband
DPP v Walsh & Conneely (jointly published magazine. Article critical to criminal court describing sentencing tribunal. Criminal attempt. Old case so freedom of press would likely apply now. Wife tried to argue doctrine. Small magazine only spouses involved. SC held didn't allow enactment of constitution, medieval view of institution of marriage of wife being property of husband. CL inconsistent and therefore void

Can. SC draws line between duress and self-defence. Arguesduress, as hired hitmanas husband threatened her and their child. Not allowed. Husband never said, I’m goingto hit you unless you hired a hitman, husband never told wife to commit acrime. Showsreluctance of the courts to allow duress as a defence