Duress

Duress

Definition (AO1)

Common Law defence - Where D commits an offence in order to avoid death / serious physical injury to D or another.

Duress may arise from a Threat or Circumstances

D’s free will is negated by the effect of a threat - Compelled to act

Threat

Definition (AO1)

• Where there is a coercer

• Whose purpose is to force D to commit an offence

Threat must be of serious violence or death

Exam Tip - Balance the threat to the seriousness of the offence

Circumstances
Definition (AO1)

• Where surrounding circumstances cause D’s fear

• i.e. no human agent

Availability of Duress

Rule (AO1)

• Where D has both AR & MR of an offence.

• Defence is available for all crimes except:

  • Murder

  • Attempted Murder

Duress not available for Murder

Case (AO3)

(R v Howe)

Duress not available for Attempted Murder

Case (AO3)

(R

Result of successful defence

Full acquittal

Duress Burden of Proof

Where D provides evidence for duress:

P must prove either:

• D did not have good cause to fear death / serious injury

  or

• A reasonable person would not have acted as D

Duress Elements - 6 Steps

(AO1)

1. Threat involve death or serious physical injury

2. Threat relate to D or person who D was close to (family) / responsible for (not strangers)

3. a) D genuinely and reasonably believe in the effectiveness of the threats (Can be reasonably mistaken)

   b) Would a sober person of reasonable firmness sharing D’s characteristics have acted as D did

4. Causal connection between the threat and type of offence D committed

5. Imminence - Opportunity to evade threat

6. D expose himself to threats (a voluntary member of a violent gang

If no to any of these then defence does not apply

Defence does not work for murder.

Duress Elements - 6 Steps

Case (AO3)

(R v Hasan)

1. Nature of Threat or Circumstances

Principle (AO1)

D may only rely on defence to duress:

• To avoid death or serious injury (any lesser threat insufficient i.e. threat to cause pain)

• Where D realise on duress by threats: - jury may consider totality of threats:

• D could rely on combination of threats of serious injury and lesser threats.

2. Threat / Circumstances Directed to who

Principle (AO1)

D’s criminal conduct must be in response to fear for safety for:

• D’s immediate family

• Someone close to D

• A person for whose safety D reasonably regards himself as responsible

Wide range - but does not include strangers

2. Threat / Circumstances Directed to who

Case (AO3)

(R v Hasan)

Threat / Circumstances Directed to Unrelated passenger

Case (AO3)

(R v Conway)

Threat / Circumstances Directed to third party

Case (AO3)

(R v Pommell)

Threat / Circumstances Directed to boyfriend

Case (AO3)

(R v Wright)

3. D’s response to Threat/Circumstance must be reasonable

Test AO1

Graham Test (Objective):

-Did D honestly and reasonably believe in the efficacy of the threats

If yes: - Would a sober person of reasonable firmness (sharing D’s characteristics) have acted as D acted