10.2.3 Duress and Necessity Lecture – Hands on Examples
The following problem question is designed to test your knowledge of the defence of duress and give you an opportunity to try and apply the elements of the defence in a practical context in response to an offence committed. Defence problem questions are not like other problem questions on offences where you establish the actus reus and mens rea and then apply them to see if they are fulfilled, so it may take a few attempts at them to adjust your style before you feel really confident at tackling them!
Take a look at the following scenario and identify any material facts as you read. Once you have done this, try and apply the defence using the case law we have looked at in these notes.
If you’re not feeling too confident about the question or the application of the defence there is absolutely no need to be concerned! Defences can and will take time to get your head around. By looking at exam style questions you are taking the right steps towards getting properly acquainted with them and when you have done enough it will become second nature! For now, a step by step outline answer has been set out and this contains all the points you need to follow and discuss when you address the scenario. Try and implement the structure and use this as guidance in writing or checking your own answer. Everything you need to know to answer this question has been discussed already so refer back to the notes to help you as you go. Good luck!
Aaron lives in an estate just outside Birmingham city centre. On the estate, there is a well-known group of lads that supply drugs around the estate. They make a lot of money and always sport designer brands and have the latest technology but they have a fearsome reputation and many of the members of the gang have been in prison at some point for violent crimes against other dealers and people who have been indebted to them. Aaron approaches the gang leader, Dean and tells him he wants in. Aaron is a little scared as he knows of the gangs reputation but Dean tells him as long as he stays on the right side of him he has nothing to worry about. For a few weeks things go well and Aaron makes a lot of money. He starts going to the casino and one night he loses massively at poker and ends up owing a lot of money to another player. Aaron pays up by giving him all the money from his drug sales that week. He is supposed to give the money to Dean’s right hand man Jay who takes the proceedings and then pays Aaron a cut out of that. When he goes to Jay with no money Jay is livid and tells Aaron that he must pay the money back by the next morning, even if he has to steal it, or he will be killed. Aaron knows that his brother’s girlfriend Susie is very well off and has seen her wear a diamond necklace. He decides to break into Susie’s house that night and steal the necklace. He sells it the next morning and is able to repay Jay in time to avoid the threat.
Aaron is subsequently charged with the burglary. Discuss Aaron’s ability to raise the defence of duress
- What type of duress?
- Duress by threat as per A-G v Whelan as Jay has posed a verbal threat to Aaron.
- Applying R v Graham, have all the elements of the defence been satisfied?
- Specified crime: Jay has suggested to Aaron that he might need to steal to get the money but he has not specified exactly what he should steal or where from. Applying Cole, although the general offence of theft has been suggested this is not an absolute must as Jay is seemingly not bothered how he gets the money, as long as he gets it. This could, therefore, be argued either way on the facts as long as you support your decision with reasoning.
- Immediacy: Applying R v Hudson and Taylorand Abdul Hussain this requirement is broad, and therefore is not definitely negated by the fact that the harm will come in the morning, as long as the threat is present. However Hasan suggests that an opportunity to take evasive action or prevent the threat will negate any immediacy. In this case, it could be argued that Aaron had ample time overnight to go to the police station but given the nature of the fact he was operating within a gang of people it is possible that this would not have negated the threat posed to him as one of the other gang members such as Dean would likely carry out the threat of death as revenge for grassing Jay up.
- Facing a threat of death or serious injury: In this case it is clear that Aaron is facing a threat of death.
- To the defendant or a person for whom he has responsibility: The threat is towards Aaron so this element is clearly satisfied.
- The threat must overbear the ordinary powers of human resistance: This is an objective test looking at a person of reasonable firmness in the circumstances of the defendant. On the facts Aaron does not have any relevant characteristics that would give him a reduced firmness and it is likely that a such person of reasonable firmness facing a real threat of death might have behaved in the same way.
- Can the defence be used?
- The defence can be applied in relation to burglary as it is not one of the excluded offences. However applying Hasan, the defence will not be possible where the defendant has knowingly involved himself in a criminal organisation and should have reasonably foreseen that he may become the subject of their compulsion. Given the gang’s reputation it will be difficult to argue that Aaron would not have reasonably foreseen that, particularly as it is stated that he was nervous approaching Jay because of this.
- Given this it is highly unlikely that Aaron will not be able to avail himself of the defence of duress.
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