Duress Flashcards
Duress by threats
The original defence: threats by X (of the ‘right’ type, to the ‘right’ person etc) to make D commit the actus reus and mens rea of an offence are sufficient to excuse D
Duress of circumstances
Developed more recently: threatening circumstances (‘right’ type etc) make D commit the actus reus and mens rea of a crime
Necessity
Shadowy and ill-defined: committing the actus reus and mens rea of the crime is justified as the lesser of two evils
Duress by threats general nature
- Defence that will leave some aggrieved
- Complete defence
The policy context
- The ‘policy’ of the law is to restrict duress by threats
- Rationale is that it is easy to have recourse to and difficult to disprove
- Law Commission (1993) recommended imposing a legal burden on the defendant in respect of duress because of the difficulty of proving
Who bears the evidential burden?
The defence
Duress by threats: element 1
(1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him, or cause him serious physical injury?
Duress by threats: element 2
(2) If so, has the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence]?
What case set out the test for duress by threats?
R v Graham [1982]
Duress by threats limits
- Key tests are objective: D’s belief in the threat must be reasonable; and his conduct in response must be reasonable
- Threats must directly cause the criminal conduct
- No evasive action (e.g. calling the police) D could reasonably take. This imparts a requirement of immediacy
- D cannot rely on duress to which he or she has voluntarily laid him or herself open: the ‘member of a gang’ criterion
Severity of the threat
- Limited to a threat of death or serious physical injury
What does not count as a threat?
- Pyschiatric harm
- Harm to a pecuniary interest, or threats to reveal secrets
- False imprisonment
- Pain
- Sexual assault (not rape)
Transmission of the threat
- The threat can be transmitted at second hand as a ‘hearsay threat’, a term to be disparaged (Brandford [2016])
- But the more directly the threat is transmitted, the more likely it will be capable of founding the defence (Brandford [2016]; DPP NI v Lynch [1975])
- Must be from another (Rodger and Rose [1998])
To whom the threat is directed
- In most cases, threats directed at D
- It is clear threats can be directed at family, including e.g. a boyfriend (Wright [2000])
- Phrased more generally in Hasan: D, his or her immediate family, ‘or some close to him or for whom he is responsible’.
Objective reasonableness
The threat must be enough to overcome the resistance of ‘a sober person of reasonable firmness’: Graham [1982], approved in Howe [1987]
Immediacy
- How immediate?
Impact of threats
Defendant must act because of the threat: threats accompanying a crime the defendant would commit anyway would not count
Voluntary exposure: gangs
D joins a criminal gang or a terrorist group; thereafter D is threatened to make him/her commit crime: Duress does not apply.
What are the 3 key cases for duress by circumstance?
- Willer (1986)
- Conway [1989]
- Martin (1989)
Modern Slavery Act 2015
- From 2000, the UK signed conventions relating to human trafficking and modern slavery.
- The courts responded with a system deploying duress, prosecution discretion and abuse of process as a backstop (M (L) [2010]; N [2012]; L (C) [2013]
- Section 45 created a statutory duress-like regime.
- The enactment of s 45 now largely obviates the need for duress (etc) to fill the gap: R v DS [2020], R v A [2020].
Modern Slavery Act defence
- Status of D as subject to slavery or trafficking.
- Over 18s: D compelled to commit crime by slavery/trafficking, subject to reasonableness test (no realistic alternative)
- Compelling by a person or by circumstances.
Under 18s: No need for compulsion: direct consequence of slavery/trafficking.
