Chapter 11: General defences - Duress

Question 1

What type of denfence is duress?

Answer 1

Duress is a type 2 defence (where a full crime must be present to trigger the defence)

• as an excuse defence

Question 2

What are the 5 overviews to note about duress?

Answer 2

1. Duress by threats
2. Nexus between threat and crime
3. Test for duress
4. Limitations to test of duress
5. Limitations to defence of duress

Question 3

What is the definition of duress? What case was the definition given?

Answer 3

“Threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal.”

• Attorney-General v Whelan [1934]

Question 4

Who bears the burden of proof for duress?

Answer 4

Prosecution - to disproof duress beyond reasonable doubt

Question 5

When can duress be raised? What case was this stated in?

Answer 5

Application of Breever v Independent Adjudicator of HMP Frankland [2010]

• Referred to the case R v Z [2005] where Lord Bingham said -
  The plea of duress, can only be used if the threat relied on must be to cause death or serious injury

Question 6

What is the outcome of sucessful duress?

Answer 6

Total aquittal

Question 7

What are the 4 limitations to duress?

if these are identified, then don’t explain further

Answer 7

• Murder as Principal offender (person doing the AR)
• Secondary Parties to murder
• Attempted murder
• Treason

Question 8

What is the type of threat sufficient to raise duress?

element 1

Answer 8

There must be a serious threat - a threat of death or serious injury (GBH) to the defendant or another

Question 9

What are the 3 cases that shows the threat must be a serious threat

Answer 9

• R v Steane [1947]
• R v Hudson & taylor
• DPP for Northern Ireland v Lynch [1975]

Question 10

What are the list of successful and unsuccessful threats?

What are the relevant cases for each?

Answer 10

Successful

• Threat of rape (would be equivalent to rape) - R v A [2012]

Unsuccessful

• Exposing D’s adultery - R v Singh [1973]
• Threats to person’s property - DPP for Northern Ireland v Lynch [1975]; R v MacGrowther [1746]

Question 11

When can duress only apply?

under sufficient threat

Answer 11

Defence of duress applies if the D would not have committed the unlawful act but for the threats of death or GBH

• However, defence requires a very serious threat of death or GBH because D is pleading to have not acted voluntarily (had no choice but to act)

but for

Question 12

What are 2 cases that show when duress can only apply?

Answer 12

• R v Valderrama-Vega [1985]
• DPP v Bell [1992]

Question 13

R v Valderrama-Vega [1985]

application of duress

Answer 13

Facts

1. Charged with importation of prohibited drugs
2. D may be subjected to ‘Mafia-type threats’ and motivated by his need to obtain money
3. And fear of disclosure of homosexuality, as well as threats of death or GBH

Held

1. Duress applies if the D would not have committed the crime but for the threats of death or GBH

Question 14

DPP v Bell [1992]

application of duress

Answer 14

Held

1. Affirmed R v Valderrama-Vega, that threat does not have to be the sole cause
2. An accumulation of influences can suffice (like Vega). But the ‘but for’ test has to be satisfied

Takeaway

• Threat itself doesn’t have to be clearly displaced, it can be other influences/causes which the D may have feared

Question 15

Can threat not be directed solely at the defendant?

Before 2005

Answer 15

Generally (before 2005)

• Threats to other persons will suffice, but it is of persuasive authority, that threat to D’s family would suffice
• But the question is purely academic

General rule

Question 16

What are the 2 cases that support the persuasive theory

Threat can be directed at other people

Answer 16

R v Hurley [1967]
R v Pommell [1995]

Question 17

R v Hurley [1967]

Threat can be directed at other people

Answer 17

Held

• A threat to D’s girlfriend will suffice

persuasive authority (general rule)

Question 18

R v Pommell [1995]

Threat can be directed at other people

Answer 18

Facts

1. D was charged with unlawfully possessing a firearm without a licence
2. But he claimed to have taken the gun from someone who was threatening to shoot at some other people

Held

1. Defence can be pleaded even if it’s not directed at D himself
2. In this case, D was not under threat
3. The threat was to the other people, and the D might not have knew who those people were

persuasive authority (general rule)

Question 19

What is the new apporach to the persuasive authority (general rule) that threats can be made to other people other than D?

What was the case that changed the persuasive theory?

After 2005

Answer 19

After R vHasan (2005), threats to others became possible for duress

Question 20

R v Hasan [2005]

What were the 4 possible applications to duress?

threats to others became possible

Answer 20

Held - their Lordships confirmed the threats must be directed towards either:

1. The defendant
2. The D’s immediate family
3. Someone close to D
4. Someone who D would reasonably regard himself as (morally) responsible

Note

• Before Hasan, these 4 threats were purely persuasive; some being not possible for the plea of duress

Question 21

Can a threat come from the D themselves? What case supports your argument?

Answer 21

No, threat can’t come from D himself

R v Rodger and Rose [1998]

Facts

1. Defendants escaped from prison and were charged with the relevant offence
2. D claimed they were forced to do so as the conditions in prison were so bad
3. So bad that they both suffered from depression, and would commit suicide if they stayed

Held

1. Their claim for duress was rejected
2. They were not able to claim that they were both under threat of death of themselves

Question 22

What is the 2nd element to prove successful duress?

Answer 22

A nexus (connection) between Threat administered and Crime committed

• Threats must be directed at the commission of the particular offence (connection between the threat and committing the offence)

Question 23

What is the case for nexus between threat and crime?

Answer 23

R v Coles [1994]

Question 24

R v Coles [1994]

nexus

Answer 24

Facts

1. D was charged with committing a number of robberies at building societies
2. At trial he pleaded the defence of duress
3. On the basis his defence was him owing money to money-lenders who had threatened him, his girlfriend, and their child with violence
4. Trial judge held the acts did not give rise to duress
5. Threats were not directed at the commission of the particular offence, but to the repayment of debt
6. Conviction was quashed

Held

1. No nexus/connection between the duress and crime
2. Duress by threat is only viable if the person threatening nominates a crime to be committed by the D
3. The person threatening wanted D to repay him, which did not involve him having to rob banks

Question 25

What is the 3rd element to duress?

Answer 25

test for duress

• 2 stages for duress laid out by R v Graham [1982]
  Affirmed by HOL in R v Howe [1997] and R v Hasan [2005]

Question 26

What are the 2 types of tests for duress?

Answer 26

Test A - The Threat Limb (objective test)

• Whether D was compelled to act as he did, on grounds of the circumstances that he reasonably believed them to be, he had a good cause to fear that if didn’t do so act, the duressor would kill him or cause GBH?
• Examine the threat > would it be believed to act as so?

Test B - The Response Limb

• If so, have the prosecution made the jury sure that a sober person of reasonable firmness sharing the D’s characteristics would not have responded in the same way to the threat

Question 27

What is the first limb/stage of the test?

test for duress

Answer 27

First limb

• Must the D’s believe in duress be honest (subjective) or reasonable (objective)?
• There need not actually be a threat; so long as D reasonably believed that there was threat of death or serious physical injury

Question 28

What is the case for the first limb of the test for duress?

Answer 28

R v Safi [2003]

Question 29

R v Safi [2003]

first limb

Answer 29

Facts

1. D hijacked plane which landed at Stansted Airport
2. Claimed the act was due to fear of persecution by Taliban in Afghanistan

Held

• COA held that reasonable belief in the threat was sufficient

Takeaway

• There’s no need to establish actual threat exists

Question 30

What is the only case where the D might be excused from the 1st limb of the test for duress?

Case?

IMPORTANT

Answer 30

R v Martin (David Paul) [2000] - “schizoid-affective state”

Facts

1. D committed 2 robberies
2. Arrested after making phone calls to the police drawing attention to himself
3. Claimed duress - that 2 men who lived in the same estate were prevailing over him
4. By means of serious threats of death or GBH to him and his mother, thus needing to commit the robberies
5. Psychiatrist said he was suffering from a schizoid-affective state and would be more likely to regard the statement as threatening and to believe them
6. Judge directed jury on duress that D’s belief of reasonableness was objectively decided

Held

• Direction to jury was wrong
• Proper test was subjective test, in the circumstances of D honestly believing them to be

Takeaway

• D’s psychiatric condition is relevant to his reasonable belief
• Only ‘schizoid-affective state’ is allowed as a mental deficiency

Question 31

What is the second limb of the test for duress?

Answer 31

Meaning of “same characteristics” as the defendant
* The reasonable person is of average fortitude that is strength and firmness of the mind

Question 32

What are the 3 cases for the second limb for duress?

Answer 32

• R v Hegarty [1994]
• R v Horne [1994]
• R v Bowen [1996]

Question 33

R v Hegarty [1994] & R v Horne [1994]

second limb

Answer 33

Facts

1. D sought to introduce psychiatric evidence that he was especially vulnerable to threats

Issue

• His aim was to argue that characteristics of vulnerability should be attributed to the reasonable man regarding the second test

Held

1. COA refused to admit the evidence in both cases as it rejected the argument that the reasonable person should have these characteristics
2. The rationale of the objective test was to require reasonable firmness to be displayed and it would completely undermine the operation of that test if evidence were admissible to convert the reasonable person into one of little firmness

Question 34

R v Bowen [1996]

second limb

Answer 34

Held

1. COA held that low IQ (short of mental impairment or mental defectiveness) was not a relevant characteristic
2. On grounds it does not make those who had it less courageous or less able to withstand threats and pressure than an ordinary/reasonable person

Question 35

What did Stuart-Smith LJ state in R v Bowen regarding the relevant characteristics to the reasonable person

What is allowed/not allowed?

second limb

Answer 35

More vulnerable - not allowed

• Accused more pliable, vulnerable, timid, or susceptible to threats than a normal person can’t be given to the reasonable/ordinary person

Different category of persons - allowed

• Category of persons that jury might think less able to resist pressure than the ordinary person
• E.g. age, sex, pregnancy, serious physical disability, recognised mental illness/psychiatric condition

Characteristics in provocation - not allowed
* Would not necessarily be relevant in the case of duress
* E.g. homosexuality
* Self-imposed abuse: alcohol, drugs, glue-sniffing

Psychiatric evidence - may be allowed

• Other psychiatric evidence other than ‘schizoid-affective state’ is not allowed
• E.g. mental illness, mental impairment, recognised psychiatric condition

Question 36

What are the 2 limitations to the test of duress?

Where can these 2 limtations be found (case)?

Answer 36

R v Barker [1999]

• If these are found to be the case, then there is no need to test duress, just convict

1. “A man must not voluntarily put himself in a position where he is likely to be subjected to such a compulsion”; and
2. “If a person can avoid the effects of the duress by escaping from the threats, without injuring himself (or to a member of his immediate family) he must do so.”

Question 37

What is meant by -

• “A man must not voluntarily put himself in a position where he is likely to be subjected to such a compulsion”; and

Answer 37

Defence of duress also not available for people who commit crimes as a consequence of threats from members of violent gangs which they have voluntarily joined
* A person who joins criminal associations can be blamed for his actions
* On grounds that joining these organisations, are already illegal, and putting themselves in the position where probable to such threats

Question 38

What are the 3 cases for the first limitation to the test of duress - “must not voluntarily put himself in a position”

Answer 38

• R v Sharp [1976]
• R v Ali [1995]
• R v Hudson and Taylor [1971]

Question 39

R v Sharp [1976]

Limitations to test of duress

Answer 39

Facts

1. D was in a party to conspiracy to commit robberies who said that he wanted to pull out when he saw his companions equipped with guns
2. After, robbers threatened to blow his head if he did not carry on with the plan
3. In the robbery, the robber killed a person
4. D was convicted of manslaughter and appealed

Held

1. Can’t plead duress
2. COA held that the man put himself in such position where likely subject to compulsion (threat)
3. Lord Lane CJ - “Where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defences of duress.”

Note

• Unavailability of duress regarding criminal organisations/gangs are not inevitable
• It depends on the nature of the organisation and the D’s knowledge of it (if he was unaware of violence, defence might be possible)

Question 40

R v Ali [1995]

Limitations to test of duress

Answer 40

Facts

1. D was a heroin addict and a seller, who fell in debt to his supplier
2. He knew the supplier to be a very violent man and had been threatened by him that would be shot if he did not repay the debt
3. Supplier gave him a gun and told him to give the money by the following day
4. Supplier told him to get it from a bank or building society
5. Convicted despite defence of duress and appealed

Held

1. COA dismissed appeal
2. Defence not available where D knew of a violent disposition in the person involved with him in the criminal activity which he voluntarily joined

extended principle in Sharp

Question 41

R v Hudson and Taylor [1971]

Limitations to test of duress

Answer 41

Facts

1. 2 teenage girls committed perjury during trial of X
2. Claimed that X’s gang threatened them with harm if they told the truth and that one of them was sitting in the public gallery during the trial

Held

• Defence of duress was not available as the threat was not sufficiently immediate
• Lord Widgery CJ stated -
  1. The threat was no less compelling because it could not be carried out there if it could be carried out in the streets of the town at the same time (would have been available to them outside court)
  2. The rule does not distinguish cases in which the police would be able to provide effective protection, from those when they would not.
  3. The matter should have been left to the jury with a discretion that, whilst it was always open to the crown to show that the defendants had not availed themselves of some opportunity to neutralise the threats, and that this might negate the immediacy of the threat, regard had to be had to the age and circumstances of the accused.