Defences: Duress

Question 1

When can the defence of duress be used?

Answer 1

The defence is only available if the defendant commits an offence of a type that was nominated by the person making the threat.

Question 2

R V Cole 1994?

Answer 2

The defendant robbed a building society to repay debt as he and his family were being threatened. The court upheld his robbery conviction because the people threatening him didn’t say ‘rob a building society or else’.

Question 3

What is the defence of duress?

Answer 3

The defence covers a situation where a defendant is forced or feels compelled to commit a criminal offence because of threats by a person or by the circumstances the defendant finds themselves in. The defendant claims that although he committed the actus reus of the crime with the required mens rea. He only did it because he had no effective choice, being faced with threats of death or serious injury. The defence is recognised as a ‘concession to human frailty’ R V Howe 1989. The effect of a successful plea is an acquittal, however this is not a defence to murder or attempted murder.

Question 4

What is the duress of circumstances?

Answer 4

Duress of circumstances has been recognised since the 1980’s. This is where the threat comes from circumstances rather than a direct threat and coincidentally these early cases were driving cases.

Question 5

R V Willer 1986?

Answer 5

The defendant and passenger in a car were surrounded by threatening youths. The defendant drove on the pavement to escape. The Court of Appeal allowed his appeal and said duress of circumstances could be considered.

Question 6

R V Conway 1988?

Answer 6

The defendant drove his car at high speed to escape when he thought two men were about to attack his passenger, the court quashed his conviction saying duress was possible as a defence.

Question 7

R V Martin 1989?

Answer 7

The defendant was disqualified from driving and his wife threatened to commit suicide unless he drove her son to work, his conviction was quashed due to duress of circumstance.

Question 8

R V Pommell 1995?

Answer 8

It was said that duress of circumstance is not limited to driving offences. The court said that the jury should be allowed to consider duress and ordered a retrial. The defendant was convicted with possessing an unlicensed firearm during a night time raid. He said he removed the gun from a man during the night and was going to hand it to the police the following morning.

Question 9

Do the same principles of duress of circumstance apply if the threat is from a person?

Answer 9

The same principles of duress apply whether the threat is from a person or from the circumstances they are in.

Question 10

What six points must apply for the defendant to be allowed to use the defence of duress?

Answer 10

1. there must be a threat of death or serious injury
2. the threat must be made to the defendant or to other
3. the threat must be immediate
4. where the defendant has an opportunity to escape or seek police protection they will not be allowed to use the defence
5. where a defendant voluntarily engages in a criminal association they will not be able to plead the defence of duress
6. the Graham Test must be successful

Question 11

How must there be a threat of death or serious injury?

Answer 11

The threat must be of death or serious injury as in R V Hudson and Taylor 1971 where the defendant’s were told they would be ‘cut up later’ if they didn’t lie. R V Hasan 2005 confirmed that the threat must be very serious.

Question 12

Is a threat to damage or destroy property sufficient?

Answer 12

A threat to damage or destroy property is insufficient for the defence in Lynch V DPP 1975 Lord Simon said ‘the law must draw a line somewhere and the law draws it between threats to property and threats to the person’. This was confirmed in R V Hasan 2005.

Question 13

Is a threat to reveal someones sexual tendencies or financial position sufficient?

Answer 13

A threat to reveal someones sexual tendencies or financial position on their own are insufficient for the defence. Where there are multiple threats the cumulative nature of threats may be considered but there must still be a threat of death or serious injury.

Question 14

R V Valderamma-Vega 1985?

Answer 14

The defendant imported cocaine and said he received threats of death, exposure of his homosexuality to his wife and he had high debts. The trial judge said the defence was only available to him if the death threats were the sole reason for committing the defence he was convicted. The Court of Appeal quashed his conviction as the jury could look at the cumulative effect of all the threats but if there had not been a threat of death the other threats would not be enough basis for the defence.

Question 15

How must threats be made to the defendant or to others?

Answer 15

As well as threats to the defendant, threats to other people are also accepted. In R V Ortiz 1986 the defendant was forced to participate in smuggling cocaine as he was told his ‘family would disappear’ otherwise. Duress was allowed. It is also allowed where friends are involved as in Willer 1986 and Conway 1988.

Question 16

R V Wright 2000?

Answer 16

The defence was available where a threat was made to the defendants boyfriend. The trial judge excluded her boyfriend as not being ‘sufficiently proximate’ saying that the defence was only available if ‘directed towards a member of immediate family’. The appeal court said this was wrong and allowed her appeal.

Question 17

R V Shayler 2001?

Answer 17

The court said that the threat could be made in relation to complete strangers. The threat can be to the defence or to ‘some other person or persons for whom he had responsibility or person for whom the situation makes him responsible’.

Question 18

How must the threat be immediate?

Answer 18

The threat must be effective when the crime is committed but this does not mean that the threats used to be able to be carried out immediately.

Question 19

R V Hudson and Taylor 1971?

Answer 19

The judge said that the defence was unavailable to the two defendants because the threat could not be put into effect immediately when they committed perjury. But the Court of Appeal said that the threat was hanging over them at the time the offence was committed i.e. it was effective to neutralise their wills. Both defendants were threatened that if they did not lie when giving evidence in court as prosecution witness they would be ‘cut up later’.

Question 20

R V Hasan 2005?

Answer 20

The driver of a prostitute was threatened by the prostitutes violent boyfriend to carry out a burglary and he was not allowed the defence. The court said that he had voluntarily exposed himself to the risk of threats of violence. The House of Lords held that the defence of duress would be unavailable if when the defendant first associated himself with the criminals he knew or ought reasonably to have known the risk of being subjected to compulsion by threats of violence. The House of Lords said that the correct test is ‘the defendant must believe the threat to be immediate or almost immediate’.

Question 21

How must the defendant take an opportunity to escape or seek police protection?

Answer 21

The defendant must show evidence that they had no option but to comply with the demands made on them. There must not be an opportunity to avoid the threats by for example going to the police. A defendant is expected to take advantage of any reasonable opportunity to avoid committing the crime and if they do not it is unlikely the defence will be available.

Question 22

R V Gill 1963?

Answer 22

The defendant claimed he and his wife had been threatened with violence if he did not steal a lorry. The Court of Appeal doubted the defence was available because there was sufficient time between the threat and carrying out the offence for him to inform the police.

Question 23

R V Pommell 1995?

Answer 23

The defendant is expected to seek police protection as soon as possible. The Court of Appeal said that a delay of a few hours was not excessive and the defendant offered an acceptable explanation for the delay in handing the firearm to the police. He persuaded a friend to hand over the gun in the middle of the night and intended to go to the police the next morning.

Question 24

Why can a defendant not use the defence if they voluntarily engage in criminal association?

Answer 24

This could happen where a person voluntarily joins a criminal gang and commits some offences but is then forced to commit other crimes they did not want to. If someone voluntarily puts themselves in a position that they risk being threatened with violence to commit a crime they will not be able to use duress as a defence.

Question 25

R V Ali 2008?

Answer 25

The principle from R V Hasan 2005 was applied here. During a test drive the defendant forced the salesmen out of the car at knife point and drove off. The defendant claimed he had been threatened by a friend with violence if he didn’t commit the robbery. The trial judge rejected his duress plea because they had been friends for many years and this man had a violent reputation and he had chosen to join ‘very bad company’. The Court of Appeal agreed and said the ‘core question is whether the defendant voluntarily put himself in the position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.

Question 26

R V Graham 1982?

Answer 26

The defendant was involved in a love triangle with his wife and male lover. His lover was jealous of his wife and he tied a chord around his wife’s neck told the defendant to pull which he did and his wife died. The defendant was convicted of murder. This case established a two part test to enable the courts/jury to determine whether or not the defendant had acted under duress. He was not allowed the defense of duress because he failed the second limb of the test.

Question 27

What is the subjective part of the Graham test?

Answer 27

Was the defendant compelled to act as a result of what he reasonably believed had been said or done? Did he have good cause to feat that if he did not act as he did then it would result in death or serious injury to him or another.

Question 28

R V Safi and Others 2004?

Answer 28

A group of hijackers perceived a threat from the Taliban, the court said that although the defendant’s perception is extremely important the belief must still be reasonable. The court will initially examine whether there is a genuine belief and they will then consider whether the belief is objectively reasonable.

Question 29

What is the objective part of the Graham test?

Answer 29

Would a sober person of reasonable firmness sharing the same characteristics as the defendant have responded in the same way to the threats?

Question 30

R V Bowen 1996?

Answer 30

A 68-year-old man with a low I.Q claimed he was forced to carry out five counts of obtaining property by deception. His low I.Q was held not to be a relevant characteristic. The court said that the following characteristics were relevant:
- age
- pregnancy
- serious physical disability
- recognised mental illness
- gender
They also held that self-imposed characteristics caused by drugs, alcohol and glue sniffing could not be relevant.

Question 31

R V Flatt 1996?

Answer 31

The defendant was addicted to cocaine and was in debt to his supplier. He was threatened by his supplier to look after some drugs for him. It was held that his self-induced addiction was not a relevant characteristic.

Question 32

Is duress available for murder?

Answer 32

No.

Question 33

R V Howe 1987?

Answer 33

Howe took part in two killings, one where he was a secondary participant and one where he was the principal offender. The House of Lords held that duress was not available for either murder or secondary participant to murder.

Question 34

R V Wilson 2007?

Answer 34

The principle of Howe was followed here, where the court of appeal confirmed that duress was never a defence to murder even though the defendant was only 13-years-old. The defendant and his father murdered their neighbour using several weapons. The defendant pleaded duress because his father threatened him with violence if he didn’t participate. This was rejected and the defendant was convicted.

Question 35

Is the defence of duress available for attempted murder?

Answer 35

No.

Question 36

R V Gotts 1992?

Answer 36

It was held that duress was not available for attempted murder either. The defendant was 16 years old at the time and was threatened with violence by his father unless he killed his mother. He stabbed his mother and Gotts was convicted of attempted murder and duress was not allowed as a defence, however, the defendant was only placed under a probation order.

Question 37

Evaluation of duress and murder?

Answer 37

• it can be argued that refusing a defendant a plead of duress to murder is very harsh especially where terrorist organisations have coerced someone into committing a crime by threatening to harm their family.
• a person is expected to sacrifice their own life rather than take another’s. However, it is unrealistic to expect such a degree of heroism and in any case the defence is only available on the basis of what the reasonable person would do. Clarkson argued that ‘it is unduly harsh to sentence someone to life imprisonment for failing to reach such heights’. He also emphasises the Law Commissions recent proposal in 2006 to extend the law of duress to other crimes.
• In choosing to kill an innocent person rather than themselves defendants could not be said to be choosing the lesser of two evils. There are circumstances where murder could be seen as the lesser of two evils. For example, in planting a bomb rather than having your family killed. There is a chance that your act may not cause any death but there is little or no chance that your family will not be killed if you refuse to plant the bomb.
• Parliament chose not to allow duress as a defence for murder when recommended to by the Law Commission in a 1977 report. We cant assume that Parliaments inaction means an intention not to change the law. Inaction may be due to a lack of parliamentary time.
• The prosecution could deal with difficult cases by deciding not to prosecute but it is not satisfactory to rely on the prosecution discretion to prosecute or not, this leads to unfairness and uncertainty. The harshness of the Howe principle is seen in R V Wilson 2007 where the defendant aged 13 who participated in the killing with his father was refused the defence of duress by the Court of Appeal.

Question 38

Evaluation of duress and the issue of criminal association?

Answer 38

• the decision in R V Hasan 2005 reflects the courts concern that the defence of duress was being relied on by the defendants who were involved in organised crime and that the scope of the defence needed to be narrowed so that it would succeed less often. However, it is possible that the House of Lords went too far in this case. They introduced an objective element in deciding whether a defendant has voluntarily exposed themselves to the risk of threats and this could be considered too harsh. Hasan said that a defendant should not have a defence if he had voluntarily exposed himself to the risk of threats of violence or if they ought to have known that by joining a criminal organisation he might be subjected to violence.
• It penalises anyone who associates with a criminal even though they thought that there was no risk that they might be threatened in the future to commit a crime by that association. Clarkson and Keating argued that this principle is ‘unacceptably wide and that the defence should only be removed if there are foreseeable threats of serious violence to commit a crime’.
• An application of the Hasan principle was applied by the Court of Appeal in R V Ali 2008 where the court didnt allow the defence of duress and agreed with the trial judge that the defendant ‘had chosen to join very bad company’ through his friendship with the violent man who threatened him to commit the robbery.

Question 39

Evaluation of duress and anomaly - murder and Section 18 OAPA 1861?

Answer 39

Duress is unavailable for murder but is available for Section 18 GBH, yet the mens rea of murder includes the intention to cause serious bodily harm which is the mens rea requirement for a Section 18 conviction. A defendant who actually kills may have only had the intention to cause serious bodily harm but through circumstances the victim dies.

Question 40

Evaluation of duress and the mandatory life sentence?

Answer 40

There is a mandatory life sentence for murder and a judge cannot consider issues of duress in sentencing. For attempted murder a judge has some discretion in sentencing e.g. in R V Gotts 1992 the defendant was put on probation.

Question 41

Evaluation of duress and police protection?

Answer 41

In R V Hudson and Taylor 1971 the Court of Appeal accepted that police protection could not guarantee a defendant would not be harmed. But even where a person had the opportunity to tell the police of the coercion they might be so afraid of the consequences that they dont go to the police. This case might not be successful today though as in Hasan the House of Lords said this decision has been very generous to the defendants.

Question 42

Evaluation of duress and the victim of threat?

Answer 42

It is arguable that decision in R V Wright 2000 and R V Shayler 2001 are a sensible development in the law expanding categories of ‘allowable’ victims’.

Question 43

Evaluation of duress and the issue of low I.Q?

Answer 43

It is arguable that the decision of the Court of Appeal in R V Bowen 1996 not to allow a person low I.Q to be accepted as a characteristic is harsh because someone with a very low I.Q can fail to understand the true nature of matters. On the other hand, it is argued that ‘the sober person of reasonable firmness’ is not someone with a low I.Q but an average level. Also simply having a low I.Q does not mean that a person has less courage and less able to resist a threat than someone with a high I.Q or an average I.Q.

Question 44

Reform of duress?

Answer 44

In 2006 the Law Commission recommended in ‘Murder, Manslaughter and Infanticide’ that the defence of duress should be available as a full defence to fatal offences. This confirms its earlier recommendation in 1997 that duress should be a general defence to all crimes including murder. This would in practice abolish the principles from Howe and Gotts. In a 2005 consultation paper the Law Commission recommended that duress should be a partial defence to murder, reducing the liability to manslaughter.