Duress

Question 1

What are the two situations an example of?

(a) Driving through red light to get dying child to hospital
(b) Driving through red light because someone has a gun to your head and tells you to

Answer 1

(a) Duress by circumstances

(b) Duress by (wrongful) threat

Question 2

When is duress by circumstances available as a defence?

Answer 2

• Only available where threat is death or GBH

- would a reasonable person in the same situation have committed a crime

Question 3

What would duress of circumstances cover that a necessity defence would not?

Answer 3

• Where the defendant reasonably but mistakenly believed threat of death or serious injury
• where two evils are same (in case of GBH) if person threatened GBH towards D and they commit GBH and argue the reasonable person would have done so in the circumstances.

Question 4

How may a defence of duress by threat be establish?

Answer 4

• Where a person committed a crime after he or another person was threatened with death or injury if he does not commit crime

Question 5

EXAMPLE

• Michael is kidnapped by a terrorist group
• he is told to burn down a building or will be killed
• Michael is charged with arson

Advise Michael as to his defence

Answer 5

• Michael may be able to successfully plea duress by threat
• He was threatened with death or injury
• He can argue the reasonable person would have acted in the same way

Question 6

How does duress by threats slightly differ from duress by circumstances?

Answer 6

• In duress by circumstances no one specifically tells the defendant to do something or face harm, instead the particular circumstances cause D to fear life or GBH and he feels the only way to prevent it is to break the law
• Duress by threat is where a D is specifically told to do something or be harmed

Question 7

EXAMPLE

• Jane is in her car waiting at a red light
• In her wind mirror she sees a masked man approaching with a knife in hand
• She speeds of through the read light and breaking the speed limit

What defence may Jane plead?

Answer 7

Duress by circumstances

• Despite the masked man not actually threatening Jane
• The incident caused her to fear for or life or at the least injury
• She may argue a reasonable person in the same situation would have done the same.

Question 8

What crimes is duress a defence to?

Answer 8

All crimes

- except murder, attempted murder and Treason

Question 9

What happened in R v Howe 1987

Answer 9

DURESS NOT DEFENCE TO MURDER

• Conjoined cases
• First case saw two mean plea duress by threat who stated they took part in a brutal assault which led to death because they were told to do so by a man with substantial criminal history
• They feared they would be hurt if they did not obey
• In the other conjoined case a man name Button was murdered by Clarkson
• Another man Burke was also charged with murder
• Burke admitted to shooting Button but stated he only done so after Clarkson threatened him with violence and the gun went off unintentionally

HELD

• Lord Hailsham stating that a reasonable man may reflect that one innocent life is at least as valuable as his own or that of a loved one
• In such a case the defendant

Question 10

What happened in R v Gotts 1992?

Answer 10

DURESS NOT DEFENCE TO ATTEMPTED MURDER?

• Case where appellant was convicted of attempted murder after judge directed jury duress was not a defence
• Appellant was a 16 year old who was ordered by his father to kill his mother
• the father stated if he didn’t he would shoot the appellant
• the appellant stabbed the mother who survived suffering serious injury

HELD

• Appeal dismissed
• duress is not a defence to attempted murder per R v Howe
• Decision mainly based on there is a need for an intent to kill in attempted murder cases whereas a mens rea of intent to cause serious injury can be made out in murder cases and it would be deviating from standard practice to allow one and not the other

Question 11

What are the elements of a defence of duress?

Answer 11

1. The defendant must act because of a threat of death or serious injury (GBH)
2. A reasonable person would have responded to the threat as D did

Question 12

What are the separate elements of ‘ the defendant acted because of threat of death or GBH’?

Answer 12

• Threats may include rape and maybe psychological injury
• threat can be to anyone who D feels responsible for
• threat must be external (e.g. suicidal depression would not count)
• threat cannot be self induced (e.g. joining a criminal gang)
• threat need not be immediate but must be imminent
• threat need not be real as long as D genuinely and reasonably believes it to be real

Question 13

Are threats to property, reputation or minor injury enough to satisfy duress as a defence?

Answer 13

• even if defendant committed a very minor crime.

Question 14

What is the test for duress by threat?

Set out in R v Graham 1982

Answer 14

(1) was the defendant … impelled to act as he did because, as a result of what he reasonably believed [X] had said or done, he had good cause to fear that if he did not so act [X] would kill him … or cause him serious physical injury
(2) ) if so, have 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 [X] said or did by taking part in the killing

Question 15

Does the threat need to be real to satisfy duress by threat?

Answer 15

• As long as the defendant held a genuine and reasonable belief it was real (subjective)

Question 16

What happened in R v Safi 2003?

Answer 16

• Case where defendant hijacked plane to flee Afghanistan
• He did so by stating he was a political opponent of the Taliban regime and wanted to protect his family
• He feared imminent threat of death or serious injury to his family and therefore argued duress
• Trial judge directed the jury in order to meet the threshold test there must be evidence that there was in fact or might in fact have been imminent peril

APPEAL

• this was judged to be a misdirection in law as it was a subjective test to decide where jury had to ask themselves whether the appellant acted in a way because he reasonably believed he or his family faced death or serious injury
• the jury then had to satisfy whether a reasonable person would have acted in the same way.

Question 17

How will jury consider how the reasonable person would respond to a threat?

Answer 17

By taking in to account whether the defendant acted in a way which was proportionate to the threat
- Jury should consider the level of terror felt by person feeling threat

Question 18

When pleading defence of duress it is to be compared to what a reasonable person would have done in response to a threat not a heroic person.

How did Lord Hailsham dispute this view in R v Howe?

Answer 18

• Dismissed the view that an ordinary man of reasonable fortitude was not capable of heroism if asked to kill another innocent

Question 19

What is a defendant expected to do if the opportunity presents itself in line with the reasonable person?

Answer 19

• If defendant has an opportunity to escape from the threat that a reasonable person would have taken then they must do so
• Any reliance upon a defence of duress after an opportunity of escape would not be valid

Question 20

It is said that a defendant must seek to escape threat as a reasonable person would have done.

How may this be difficult in certain situations?

Answer 20

• Many occasions defendant’s may be expected to seek police protection
• in certain cases e.g. Hudson this may not be sufficient

Question 21

What characteristics of a defendant should be taking into account when attributing to a reasonable person

Answer 21

Objective and subjective standard

• Why D may not have lived up to a reasonable person (e.g. PTSD would be accepted but not low IQ)
• Why D could not escape threat (if person had physical mobility problem)
• To affect the gravity of the threat (e.g. if pregnant)

Question 22

How should a trial judge decide what characteristics can be ascribed to a reasonable person?

Answer 22

• Must be shown that the the characteristic provides a reason for following below the level of firmness that can be expected.

Question 23

What happened in R v Fitzpatrick 1977?

Answer 23

THREAT CANNOT BE SELF INDUCED

• Case appellant voluntarily joined the IRA
• He later wished to leave and was threatened with violence
• He claimed he was forced to take part in robberies
  HELD
• Defence of duress rejected
• Individuals who submit themselves to illegal compulsion cannot rely in defence if duress simply because they wish to leave such activities

Question 24

What happened in R v Shepherd 1988?

Answer 24

SLIGHT EXCEPTION TO SELF INDUCED THREAT

• Case where appellant was a member of a gang of shoplfiters
• He tried to leave but himself and his family were threatened with violence if he did
• He was charged with burglary and the trial judge withdraw defence from jury
• convicted
  APPEAL
• Conviction quashed
• Gang of shoplifters very different from a parliamentary organisation or gang of armed robbers
• Judge stated defence should have been left to jury to decide
• Jury should have been able to make decision whether he took risk if violence by joining gang whose activities were not overtly violent

Question 25

What happened in R v Baker 1999?

Answer 25

• Case where appellants were indebted to a drug dealer
• The dealer ordered them to rob a bank or both be killed
• Appellants robbed bank out of fear and were convicted of robbery
• Trial judge directed jury that duress defence not available here as appellants had voluntarily joined a criminal group which may exert violence on them if they do not commit offences to obtain money
  APPEAL
• Conviction was quashed stating trial judge misdirected the jury
• D has to be aware of risk the group may try and coerce him in to committing offences of the type for which he is being tried by the use of violence and threats
• In this case it is arguable that the Defendant would not have been aware of risk he must rob a bank

Question 26

What happened in R v Hasan 2005?

Answer 26

Answered on the contrary to Baker

• HOL restored a defendant’s conviction overruling the earlier authority
• They lords ruled the duress defence was lost where D voluntarily becomes or remains associated with others engaged in criminal activity
• This being in a situation where he knows or ought to reasonably know that he may be the subject of compulsion by them or associate
• Now no requirement that the anticipated coercion be to commit crimes let alone crimes of the type typically committed
• Defendant lost the defence as he voluntarily associated himself with generally violent people

Question 27

What happened in R v Hudson and Taylor 1971?

Answer 27

• Two girls were witnesses to a fight
• They were called to testify against the defendant in trial
• They received numerous threats on the lead up to trial stating that they should lie on the stand or face violence
• On the day of the trial the person making threats was sitting in the public gallery staring menacingly at the girls
• They proceeded to lie on the stand and were convicted of perjury
• In their case the trial judge had stated that duress could not be used as the threat was not immediate
  APPEAL
• Upheld Widgery LJ stating the threat must be present in sense that it is effective to neutralise the will of the accused at the time
• This being even where the threat of injury is not immediately but after an interval

Question 28

What happened in R v Abdul-Hussain 1999?

Answer 28

• Abdul Hussain had been sentenced to death in Iraq following confession after being tortured
• Other appellants in the case were also fugitives being sentenced to death in Iraw
• The appellants all hijacked a plane from Sudan out of fear of extradition where they would certainly face brutal death
• They landed plane at London
• At trial appellants were denied the defence of duress on grounds there was lack of requirement of immediacy and thus convicted
  APPEAL
• Convictions quashed
• Execution of threat need not be immediate, it is imminent peril of death or serious injury that is an essential element in both types of duress

Question 29

What happened in R v Bowen 1996?

Answer 29

• Bowen was convicted of obtaining services through deception
• He accepted the key facts of the prosecution but argued he only acted this way because two men accosted him in a pub
• The two men threatened his family would be bombed if he did not assist or if he went to police
  Evidence was adduced at trial and it was determined he had an IQ of 68 which made him more susceptible to threats
• judge declined that jury should have been directed on defendant’s IQ
  APPEAL
• Defendant appeal was rejected on the basis that IQ was not to be taken in to account when attributing characteristics to the reasonable person
• Accused’s gender, age and possibly physical disability used in weighing reasonable persons behaviour