Week 18 Criminal: Duress

what are the two ways duress is used in criminal law?

(I) Duress (by threats): excusatory defence. D has been compelled to act by the pressue of wrongful threats ("do  this or else") R v Hasan, HL, 205

(2) Duress by circumstances: elements 'mirror' duress / defence 'outgrowth' of duress. Difference = threat arises from circumstances percieved to be threatening

 

• D compelled to act by pressure of wrongfyl 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

what did Lord Wilberforce say about duress?

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 treated what s/he has done a crime'

what are the elements of duress (created by R v Hasan, HL, 2005, para 21)

(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 defendants 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

duress does not afford a defence to charges of murder - elaborate

 duress not a defence to charge of murder, controversial? 2006 Law Commission recommend that duress should be ; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228782/0030.pdf

the threat must be to cause death or serious injury - elaborate

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 childs 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 efence exists to accommodate human frailty when D's mind is so overpowered by some threat of death or serious physical injury that they cannot be 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 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. D's 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.

the threat must be direct against D, D’s immediate family or someone close to D - elaborate

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)

the relevant tests are objective, with reference to the reasonableness of D’s perception and conduct - elaborate

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.

 

R v Graham [1982]

Was the accused impelled to act as he did because as a result of what he reasonable believed the 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.

 

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 doctors opinion an accused, who is not suffering from such illness or condition, is especially timid, suggestible or vulnerable to pressure and threats."
relevant characteristics: ages, possible 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 charac teristic (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.

the criminal conduct must have been directly caused by threats - elaborate

sufficient connection needed between the threat and the crime. R v Cole [1994]; D committed robbery to repat 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]; 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 threat, as long as D reasonably believed it existed. Safi: no need for objective evidence of threat, as long as D reasonable 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 inury. Genuine belief about existence of non-existent threat R v Martin [2000].

(immediate) duress is only available if there was no evasive action D could reasonably have been expected to take - elaborate

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. E.g D told to commit a crime whilst a Gun is pointing at his head or whilst his child is being held under threat. D threatened 'I will shoot you unless you steal £1000 from X by next week.' before Hasan, courts more generous on interpreting imminence: looked to the imminence of the threat rather than the immediacy of the threatened harm.

Hudson and Taylor [1971]:

D committed perjury at trial, threated with being 'cut up' if she identified a suspect in trial. One of those issuing threats was in the public gallery as D gave evidence. Found guilty of perjury but appeal allowed. Held threat must be a 'present' threat - even though threatened injury may not follow instantly (e.g. while she gives evidence) but after an interval. Approach in Hudson later criticised in Hasan. Case hasn’t been overruled, but current approach is much stricter/less generous or imminence requirement. Duress could still be relied on where threat won't be immediately enacted, but much narrower circumstances. Possibility of evasive action assessed more closely.

 

Abul 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.

 

R v hasan (para 28):
'if the retribution threatened is not expected to follow immediately or almost immediately upon failure to comply with the threat there may be little if any room for doubt that D could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.'

D may rely on duress to which he has voluntarily laid himself open - elaborate

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

 

R v Fitzpatrick:

First established this principle, IRA case, D claimed to have been forced to participate in a robbery, held voluntary exposure means duress unavailable as a defence.

 

R v Sharp:

Confirmed Fitzpatrick, defence unavaiable where D voluntarily exposes himself to risk of duress by association with others e.g. by joining a gang.

 

R v Z [2005] HL:
policy behind the approach is to discourage association with known criminals - limiting circumstances where defence is available in these situations. HL confirmed duress unavailable when, through D's association with those engaged in criminal activity, he foresaw / ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.

 

duress depends on the type of offence D was forced to commit - what are some key cases that show this?

Baker and Ward [1999] (approach overturned by HL in Hasan). Heroin dealer forced to commit robbery by his supplier. CA held defence would continue to be available to D where they were unaway of the risk of being forced to commit anything other than drug-related offences. Approach rejected by Hasan - defence unavailable where D knows / ought to have known that he would be subjected to any compulsion by threats of violence. Enough for compulsion to be to commit criminal activity - does not need to be the type of offence ultimately committed. Objective test: what D ought reasonably to have foreseen.

 

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 threated by S with deadly consequences to himself and his family if failed to do so. D drove 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."

what is duress not a defence to?

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]

 

R v Howe [1987] HL:

Ds are expected to face a risk to life themselves rather than save themselves by killing another. HL overturned prior authority that duress is available to a person charged with aiding and abetting murder.

Established that an accomplice cannot rely on duress as a defence to murder.

 

R v Wilson [2007] CA:
D, 13 year old boy, assisted his father in the murder of their neighbour - fetched an axe and started a fire on his fathers command. D claimed that he did so only through fear of his father's violence. Unable to rely on defence of duress; murder conviction upheld on appeal. CA recognised harsh outcome of child convicted for acting out of fear of an abusive parent, but was bound by precedent in Howe.

 

R v Gotts [1992] :

Duress equally unavailable for attempted murder - follows from unavailability as a defence to murder. D ages 16 was threatened with death by his father unless D killed his mother who had fled to a woman's refuge with 2 other children. D stabbed his mother, convicted of attempted murder. HL: 3/2 - no precedent and therefore decision based on policy; "nothing should be done to undermine in any wa the highest duty of the law to protect the freedom and lives of those that live under it". Majority agreed Parliament should review defence to consider whether the defence could be available to murder/all crimes. Age not considered by HL - so defence always unavailable as defence to attempted murder, regardless of D's circumstances. Lord Lowry, minority, critiqued exclusion: "to withold the defence only from a selected list of serious crimes… is questionable from a sentencing point of view … the defence is withheld on the ground that the crime is so odious that it must not be palliated and yet if circumstances are allowed to mitigate the punishment, the principle on which the defence of duress is withheld has been defeated."

 

Reform:
law too narrow, exludes those deserving of an excuse? (compare with necessity next week) Not on agenda, proposals in 1989,1993,2006.

what is duress by circumstances?

Extension of duress so mirrors duress (Hasan) requirements. Defence arises not from direct personal contact (threat) but from circumstances percieved to be threatening. Complete defence, also unavailable for murder and attempted murder.

what are the key differences with duress?

Threst doesn’t need to stem from a person - can arise based on circumstances alone. Threat doesn’t need to be commit a specific offence (again, dictated by circumstances). May be harder to pinpoint time frame/imminence i.e. the point at which the threat arises or when danger has passed.

what are the key cases in relation to duress?

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.