Duress June 2012
David could potentially use the defence of duress by threats due which is a defence based on the fact that the defendant has been forced to commit a crime because he or she has been threatened with death or serious injury. This may also apply to circumstances where the defendant finds themselves in which means they must commit a crime. Duress can be either through direct threat by another (duress by threats) or through external circumstances (duress by circumstances.) Here the duress is through a direct threat by another (duress by threats).
Duress by threats is where another person threatens the defendant with serious violence unless D commits an offence. As stated in AG v Whelan the threat must be of death or serious injury; lesser threats do not provide a defence. However provided that there are serious threats then the cumulative effect of the threats can be considered. Here there was no threat to cause serious violence or death therefore the threat cannot provide a defence as David ignored Tom suggesting he didn’t feel threatened. A threat to damage property or destroy, expose sexual preference or fear psychological harm is not sufficient. The threat can be made to the defendant himself but it has been accepted that threats made to the defendants family or even friends can be the basis for the defence of duress shown in Conway 1988 and R v Ortiz 1986. Here the threat was made to the defendant David to expose him about his sexual assault unless he gave him £50. A defendant can only use the defence if the threats are in order to make him commit a specific offence, which applies to duress by threats only (R v Cole).
The Term Paper on Economic Duress
A contract is voidable or vitiate under several situations, economic duress is one of the examples. Economic duress is a vitiating factor in a contract as it is a common law defense. When there happens to be an economic duress in a contract, the party can make the contract voidable if the requirements are fulfilled. One needs to be noted that the contract is only voidable instead of being voided ...
The threat here does not indicate David would have to commit an offence to provide tom with £50.
Duress can only be used if there is no avenue of escape, therefore the defendant must be placed in a situation where there is no alternative than committing an offence shown in R v Gill. Here David is not in a situation where he needs to commit an offence therefore it would be unlikely he would be able to plead the defence of duress.
The success on this depends on the jury considering a two stage test which is both subjective and objective and decided in the Court of Appeal in R v Graham and approved in R v Howe. However in order for this to be established the defendant must have committed a crime which David did not he ignored the threat therefore he would not be able to plead the defence of duress successfully.
To conclude the requirements of duress have not been met therefore David would not be able to plead the defence of duress.
