Free Law Dissertations - The Defendant Must Take Any Reasonably Available Steps To Escape From The
The defendant must take any reasonably available steps to escape from the threat such as seeking police protection.The threat must be of imminent harm although there is no necessity for the harm to be virtually immediate.Thus in Abdul-Hussain (supra), the hijacking of an aeroplane by asylum-seekers in order to avoid return to a jurisdiction in which they legitimately expected torture and/or death was held to be a potential defence of duress which ought to have been left to a jury.The defendant must not have put himself in the position in which he might be threatened in such a way: in cases such as Sharp, it has been held that where defendants join criminal gangs and are subsequently threatened if they refuse to carry out the criminal activity contemplated, the defence of duress will not be available provided that they were aware that they had joined a violent gang and aware of the consequent likelihood of threat if they subsequently refuse to participate in the anticipated criminal acts.
The courts have begun to recognise a species of duress which might be described as duress of circumstances this might be likened to the defence of necessity (see below).This emerged in Willer in which the defendant was charged with reckless driving after he had driven on a pavement in order to escape a gang of youths which threatened violence against him and his passengers.The judge at first instance refused to leave the defence of necessity to the jury.The ensuing conviction was quashed by the Court of Appeal on the ground that the defence of duress was available.This represented an extension of previously understood principles of duress since the offence committed was not at the direct instigation of the threatening parties: contrast the type of duress in which gang members procure the commission of a specific act by threats as discussed above with this situation in which the decision to drive recklessly was forced upon the defendant but not specifically dictated.Similarly, in Conway a driver drove recklessly because he feared that his passenger was being pursued by individuals who had shot at her previously and she instructed him to drive off.In fact, the pursuing parties were police officers who wished to interview the passenger.The defendant’s conviction was quashed on the ground that the defence of duress of circumstances had not been left to the jury.Willer and Conway were followed in Martin (Colin) where the circumstances were that the defendant drove whilst disqualified because his wife threatened to commit suicide if he did not get her son to work on time.
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