Duress - Case reference

R v Hudson and Taylor

Two girls were called to give evidence about a fight they had witnessed. Once there they gave false evidence that jeopardised the trial as they were being glared at by the violent defendant the whole time. This set the precedent that danger that causes duress needs to be imminent not immediate.

R v Gill

D was told to steal a lorry under threat to him and his wife, but the threatener gave him a week to do it giving him ample time to tell the police and escape. Instead he did steal the lorry and tried to use duress at trial. This failed as he could of escaped but chose not to.

R v Howe 1987

D and another helped an older man murder and torture two people and attempt to murder another in a remote location. He was part of a gang lead by this man and he said if he did not help him strangle them he would do it to them. D argued he had done this under duress as the older man threatened to murder him if he did not assist him. This was rejected by the court of appeal and a precedent was set that neither murder nor attempted murder can be defended by duress. Better to lay down their life then kill another.

R v Wilson

the victim was an aggressive and rude neighbour who had recently broken their neighbours wing mirror. D was a 13 year old boy who was taken by his dad to kill her with an axe, pole, and sock filled with rocks. They then set fire to the house to disguise the body. D argued duress as his father forced him to do it by threat of violence. Could not be accepted as it was murder.

A-G v Whelan

Duress by threats defined as ‘threats of immediate death or serious personal violence so great as to over bear the ordinary powers of human resistance’

R v Gotts + R v Wilson

in both cases D made an attempt on or actually killed their mothers under duress from the father. Despite the defendants being young in both cases the Howe principle did not allow for any leniency and duress could not be used.

Valderrama-Vega

In this case D was forced to smuggle drugs under threat of violence and the release of his homosexuality. The courts accepted duress, but made clear that the spreading of his homosexuality would not be enough alone, a fear of serious violence or death is required for duress which is quite strict.

R v Graham 1982

D was living with his wife and homosexual partner, his boyfriend had tried to kill his wife before, but D had stopped him. On this occasion while under the influence of drugs his partner got him to help him and they killed her. Although duress could not be used as it was a murder, a system to establish duress of a subjective test for the person involved and an objective for how a normal person would have acted.

Graham rules: was the defendant compelled to act as  they did because they reasonably believed they had good cause to fear serious injury or death; would a sober person of reasonable firmness, sharing the same characteristics of the accused, have responded in the same way.

R v Bowen

D was of severely low iq. Two men forced him to commit 40 different thefts under the threat that they will petrol bomb his house. The courts did not want to take into account his low iq as intelligence does not affect bravery. The characteristics that would be taken into account are: Age as young and older people are more susceptible, pregnancy as there is additional fear for the baby; serious physical disability as it is harder for those with a condition to defend themselves, recognised mental illness as it is harder for them to comprehend their surroundings – but low iq does NOT count; and gender.

R v Cole 1994

– D owed money to a loan shark who had threatened him and his girlfriend if he did not repay. D then robbed  a number of building associations to get the money. Duress was rejected as there was not a strong enough nexus (link) as the loan shark had never forced him to rob to get the money he was just forcing him to get the money.

R v Abdul-Hassain

D hijacked a passenger plane and redirected it to London to avoid deportation to Iraq where D believed they would be executed. The courts ruled this was enough for duress and ruled that the threat needs to be imminent not immediate although this has been disagreed with in other cases.

R v Hasan

D was charged with robbery, but argued he had been forced to do it under death threats from a woman. D and this woman were both members of a known criminal gang making it hard to believe that D never thought he would be forced into committing a crime by a higher ranking member. Duress was rejected.

Hasan rules: There must be a threat to cause death or serious injuries; the threat must be directed against the defendant or their immediate family, or someone close to them; whether the defendant acted reasonably in light of the threats, the threats relate directly to the crime committed by the defendant, the defendant cannot use the defence if they have voluntarily laid themselves open to threats (affiliated themselves with a gang)

R v Fitzpatrick

D joined the IRA at the age of 19. He believed a civil war was imminent and he was aware of their crimes, but wanted to do something. His service was getting in the way of his A-levels so he asked to leave, but his officer put a gun to his head and told him to commit armed robbery. While robbing them he killed an employee and was tackled by the others. Duress could not apply because he was both a member of a criminal organization and had killed someone.

R v Conway

– D was driving with a passenger who had recently been shot at. When D noticed a car was following him he drove recklessly to protect his passenger. In fact this car was an undercover police car. As the test for reasonableness of duress is objective the fact of his fear was irrelevant and he was liabke for reckless driving.

R v Willer

D was first found guilty of reckless driving as he had driven onto a pavement to avoid a gang of violent youths. The appeal courts overturned this under the defence of circumstantial duress as he feared an attack by the youths.

R v Martin

D’s partner had tried to kill herself on a number of occasions. In this case she threatened to kill herself if D did not drive her son to work even with his suspended licence. This was sufficient for duress and D was not liable for driving without a valid licence.

R v Ortiz

D was from Colombia and threatened by a cartel that if he did not help smuggle drugs, they would make his family disappear. The defendant could not dismiss this threat as a high number of people went missing after crossing the cartel. Duress was successful. This set the precedent that immediate family was also included in duress.

R v Wright

– D was caught smuggling drugs as D was being threatened with the murder of the boyfriend if she did not smuggle the drugs. Duress was accepted as boyfriend, girlfriend, or best friends are sufficiently close. Other friends are unlikely to count and animals and pets do not count as close enough.

Defence of necessity

This is rare and controversial but can stand up to be a defence even for murder as seen in Re A (conjoined twins) where doctors were granted a declaration that an operation to separate conjoined twins could go ahead unpunished even though they knew one of them would die.

R v Shepherd

D joined a shoplifting gang but was threatened with violence to stop him from leaving. He did not know this was likely when he joined so shoplifting after his failed attempt to leave could use duress but any done before then could not.

R v Pommel

D was found by police in bed with an SMG. He told the police that in the night he had taken it off someone else to prevent them killing people. He had intended to hand it into police in the morning. The defence of duress by circumstance was available to him.

R v Cairns

V threw himself on D’s bonnet. V’s friends then came out and surrounded the car which D believed was to attack him so he sped off, seriously injuring V. The friends were actually trying to help but D was found not guilty as he had reasonably perceived a threat of serious physical injury or death from the mad circumstances.