defences 3 - Duress

what is the definition of Duress?

• D compelled to act by pressure of wrongful threats

• Complete defence to all crimes except Murder (R v Howe 1987), attempted Murder (R v Gotts 1992) and some forms of treason (offences against the state)

• Excusatory defence: applies where D’s wrongdoing or fault should be excused as they were overborne by threats of death or physical violence

Lord Wilberforce

• DPP for N.I v Lynch [1975] AC 653

“Duress is something which is superimposed on the other elements of the offence as to prevent the law from treating what s/he has done a crime”

The way we structure IRCA is different for duress. You still use IRAC at the beginning you would usually define the definition and the several rules summarised just need to state that there are several requirements and they were stated by R v Hasan and his definition.

what are the elements of duress?

(1) Duress does not afford a defence to charges of murder (reform?)

 

(2) The threat must be to cause death or serious injury

 

(3) The threat must be directed against the defendant, his immediate family or someone close to him

 

(4) The relevant tests are objective, with reference to the reasonableness of the defendant's perceptions and conduct

 

(5) The criminal conduct must have been directly caused by the threats

 

(6) (Immediate) Duress is only available if there was no evasive action D could reasonably have been expected to take

 

(7) D may not rely on duress to which he has voluntarily laid himself open

 

(1) Duress does not afford a defence to charges of murder:

 

• Duress not a defence to a charge of murder, see later slides

• Controversial? 2006 Law Commission recommended that duress should be

(2) The threat must be to cause death or serious injury

• Threat, from person, must be of death or serious physical injury

• Serious psychological injury insufficient: R v Baker and Wilkins [1997]

• D, mother, charged with threatening behaviour and criminal damage

• In an attempt to rescue her child, whom D believed had been kidnapped by the child’s father and his new wife, D broke through the front door of the premises where the child was being held

• Submitted that defence should be available where D believed the act was immediately necessary to avoid serious psychological injury

• Appeal dismissed, held defence exists to accommodate human frailty when D’s mind is so overpowered by some threat of death or serious physical injury that they cannot reasonably be expected to act otherwise

• Threat of false imprisonment without serious injury insufficient: R v Vinh van Dao [2012]

• 3 workers at a cannabis factory were convicted of cultivating cannabis and possession of criminal property

• 2 appealed against their conviction on the grounds that they had been duped into believing they were cleaners, not cultivators and that when they tried to leave they were threatened with violence so that their will had been overcome

• They were locked in with no means of escape and their work had been under duress

• CA dismissed the appeal on the grounds that duress on the facts of this case were fanciful. Ds were found with mobile phones and keys to the building

• Expressed that a threat of imprisonment without an accompanying threat of serious harm would be insufficient

3) The threat must be directed against D, D’s immediate family or someone close to D

The threat must be directed against

• D

• a member of D’s immediate family,

• a person for whose safety D would reasonably regard themselves as responsible (Wright, CA 2000, approved by HL in Hasan), or

• persons for whom the situation makes D responsible because D is placed in a position where D is required to make a choice whether or not to take the action which it is said will avoid them being injured (Shayler, HL 2001)

(4) The relevant tests are objective, with reference to the reasonableness of D’s perceptions and conduct
 

• Whether a sober person, of reasonable firmness, sharing D’s characteristics, would have responded in the same way (Graham; Bowen)

• Objective approach confirmed in R v Hasan

• Purpose to avoid frivolous / false claims

• Strict interpretation, few characteristics taken into account

 

When we are looking at if Someone can or not rely on the duress test.

what are the main cases to site?

R v Graham [1982]

R v Bowen [1996]

R v Bowen [1996]

• D, low intelligence, convicted of deception offences

• Claimed that 2 men threatened to petrol bomb his house unless he obtained the goods

• Trial, evidence found D abnormally vulnerable and suggestive

• Characteristics withheld from jury, D convicted and appealed

 

• “The Defendant may be in a category of persons who the jury may think less able to resist pressure than people not within that category. Obvious examples are age, where a young person may well not be so robust as a mature one; possibly sex, though many women would doubtless consider they had as much moral courage to resist pressure as men; pregnancy, where there is added fear for the unborn child; serious physical disability, which may inhibit self-protection, recognised mental illness or psychiatric condition such as post-traumatic stress disorder …

 

• Psychiatric evidence may be admissible to show that the accused is suffering from some mental illness, mental impairment or recognised psychiatric condition … it is not admissible simply to show that in the doctor’s opinion an accused, who is not suffering from such illness or condition, is especially timid, suggestible or vulnerable to pressure and threats.”

 

• Relevant characteristics: age, possibly sex, pregnancy, serious physical disability

• Mere fact D more pliable, timid, vulnerable or susceptible not relevant characteristics

• Low IQ short of mental impairment cannot be relevant characteristic (recognised mental illness / psychiatric condition may be admissible e.g. PTSD)

• Characteristics due to self-inflicted abuse such as alcohol, drugs, glue sniffing not relevant

R v Graham [1982]

• was the accused impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious injury would result

• if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted

• Threat must be one that would overcome the will of an ordinary person of the age and sex of D: relevant characteristics

(5) The criminal conduct must have been directly caused by the threats
 

• Sufficient connection needed between the threat and the crime

• R v Cole [1994]: D committed robbery to repay debt

• Lenders threatened D and his family unless he repaid debt, but did not specify what he should do to find the money

• Held: Duress only applies when threatening party specifies the offence

• Threat need not exist in fact - so long as D reasonably fears that it does: R v Hasan; R v Safi [2003]; R v Cairns [1999]

• R v Cairns: D charged with dangerous driving and s.20 GBH

• Held D’s reasonable belief in threat mattered – not whether threat actually existed

• Confirmed in Safi [2003] and Hasan

• Safi: no need for objective evidence of threat, as long as D reasonably believed it existed

• Safi: no need for objective evidence of threat, as long as D reasonably believed it existed

• Duress can be based on mistaken belief but an honest belief will not suffice unless D’s belief is also reasonable

• = A reasonable person in D’s position would also have believed that there was a real threat of death or serious injury

• Genuine belief about existence of non-existent threat R v Martin [2000]

Has to be a specific instruction for example you have to rob this bank it cannot be do what you need to do as it is vague. The threat doesn’t have to exist but the D has to reasonably believe that this risk is real. It is the reasonableness that is relevant. For example, they have a weapon and are threatening you with that weapon. What you have to ask if would the D in a reasonable mind would have precede this threat to be real.

(6) (Immediate) Duress is only available if there was no evasive action D could reasonably have been expected to take
 

• Threat must be of immediate harm, confirmed in Hasan

• D could not reasonably be expected to take evasive action

• Any delay likely to undermine defence

You can say as avicide action could they have gone to the police. If there was any opportunity they could get help via police then they cannot use duress.

Abdul Hussain and Others [1999]

• D hijacked plane to England to escape government persecution and likely execution in Iraq

• Did threat overbear D’s will?

• Execution wouldn’t have happened immediately but threat was the imminent cause of offending

• Again, approach departed from in Hasan…

7) D may not rely on duress to which he has voluntarily laid himself open
 

• Defence will fail where D associates with others whom he knew or ought to have known might subject him to any compulsion through threats of violence

• Defence will fail where D freely associates with others whom he knew might coerce, by violence, to commit a crime

• R v Fitzpatrick [1977], R v Sharp [1987], R v Z [2005] and Hasan

 

Means that most of the time it is referring to people in gang so if you join a gang you then cannot complain that the gang make you do things but there are more grey areas for specific people like individuals who are in a relationship with someone who commits crimes. If the person associating themselves with people who commit crimes and they know, courts aren't lenient and it depends on the situation such as domestic abuse.

The reason it is upheld quite strictly as its for people who would not want to commit an offence but are being forced to commit an offence.

R v Sharp [1987]

• Confirmed Fitzpatrick

• Defence unavailable where D voluntarily exposes himself to risk of duress by association with others e.g. by joining a gang

R v Hasan [2005]

• D worked for T, who was involved in prostitution. Boyfriend, S, was involved in drug-dealing, reputation for violence – S had boasted to D that he had committed 3 murders and had offered to show D a body in the boot of his car

• D alleged that he had been ambushed by S and an unknown man (armed with a gun) and made to carry out a burglary and threatened by S with deadly consequences to himself and his family if failed to do so. D driven to house, given a knife and forced to commit a burglary

• D broke into the house but ran off when he saw the occupier. D alleged that he had no chance to get to the police (take evasive action)

• No harm came to D’s family

• D’s conviction overturned by CA in reliance on Baker and Ward – CA stated defence should be available where D does not foresee compulsion to commit a crime of the type he was forced to commit

• HL dismissed this interpretation of the law

• Lord Bingham: “policy in my view points towards an objective test of what the defendant, placed as he was and knowing what he did, ought reasonably to have foreseen … the policy of law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so…

• if a person voluntarily becomes or remains associated with others engaged in criminal activity where he knows or ought to have reasonably known that he may be subject of compulsion … he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do.”

Duress and Murder.

Duress is not a defence to:

•  Murder: R v Howe [1987] HL

•  Aiding and abetting murder: R v Howe R v Wilson [2007] CA

•  Attempted murder: R v Gotts [1992]

The law view us as strong citizens who would not kill another individual to save ourselves.

Duress by circumstances

• Extension of duress so mirrors duress (Hasan) requirements

• Defence arises not from direct personal contact (threat) but from circumstances perceived to be threatening

• Complete defence, also unavailable for murder and attempted murder

 

Key differences with duress

• Threat doesn’t need to stem from a person – can arise based on circs alone

• Threat doesn’t need to be commit a specific offence (again, dictated by circs)

• May be harder to pinpoint time frame/imminence i.e. the point at which the threat arises or when danger has passed

Key cases

• R v Willer [1986]: no reference to duress by circumstances

• R v Conway [1989]: language of duress by circumstances begins to be used

• Both cases involved dangerous driving considered necessary to avoid death/serious injury