What happens in exam, is when students see the issue is they lose the complete analysis. Robbery.
Defence - duress by threats, duress by circumstance or duress by necessity. What’s the difference...case of Cole. He owed money. The lenders said they wanted it back or else. He took it upon himself to steal money. He relied on duress. But he wasn’t told by the gang. Duress of circumstance. He felt he had no choice. Check to see whether the threatenor (gang member) tells the threatee (robber under duress) to rob or not. Here we know he was told to take part in the robbery. That makes it duress by threats, following Lord Bingham HL Hassan.
First question: this is only going to work if the threat is made by death or serious injury. Anything less than that won’t work for a duress defence. Serious injury, what level of harm is that in law (defined by what case: ABH/GBH – serious injury in the case of Saunders. Saunders states that serious injury is GBH. Check in story. He said “break his legs”. Likely GBH. So that would be sufficient threat to say to Alan we can consider it as a defence. Second thing: WHO was threatened? Needs to be the right person. The defendant or someone close to them like a child or a spouse. A relation or someone else close to them. And there’s one other category – someone they feel responsible for. They might not know these people. Yet they might feel responsible for them. Case of Shayler. Example of bombers as obiter – if Someone picked up the phone, told there was a bomb in supermarket, and told to get everyone out – then they feel responsible for the persons even though unknown. Just write in the exam on the relevant bits. No time for more.
Even if there’s sufficient threat:
we need to decide if he reasonably believed he was being threatened he honestly believed it would be carried out, i.e. if there was GOOD CAUSE.
So on this story, can we persuade? Yes – quite explicitly told “do this or we will break your legs”. Nothing needs to be implied. Do we think he had good cause to think? Or is this a wind up? They are well known for their violence – reputation of the gang supports the GOOD CAUSE argument.
Whether or not a reasonable man would have done the same thing. Also an objective test (Bingham in Hassan). We know in law that reasonable people would say they’d not do it, however, law allows us to take characteristics of the defendant and put them onto the reasonable man, this is 2 lists of characteristics that the law allows, and the law doesn’t allow. Allowed: age, sex, mental illness, serious physical disability, pregnancy (we’re more likely to do things aggressively)...Howe (cannot have for murder)...Gottsennet...(?)
CANNOT TAKE INTO ACCOUNT – low IQ, intoxication, whatever falls short of recognised mental illness i.e. vulnerable, emotional, pliable, easily influenced...poverty, (this whole defence is tough to run and judges don’t like it and only clients with really bad defences want to use this – i.e. quite a lot of them!)
Proportionality test used to decide which of these characteristics the defence will use. Is committing the offence the lesser of two evils? What have i been threatened with, etc...Abbotts. Whether a reasonable man would have endured the risk of having his legs broken rather than doing a robbery?
Is location (living on bad estate) taken into account? – CoA subsumed this, but Bingham creates a different question later. Certain characteristics need to be accepted.
The only mitigating factor - a polite robber, the decent ones are nice! But the punishment is harsh so they should be polite.
Can do a robbery with far less harm than what he’s been threatened with, so use that to convince the jury.
Check the nexus between the threat and the crime – check the link between what they were told to do, and what they did CASE OF COLE. He was told to commit a robbery. We’re told he committed a...