Legal Principles and Parameters of the Defense of Duress

Foundations and Rationale of the Defense of Duress

• The common law has long recognized the defense of duress, which stipulates that if a crime is committed under the threat (or immediate threat) of imminent death or serious bodily harm, the defendant should not be found criminally liable.
• Logic of the Defense: Criminal law intends to prevent acts destabilizing to society, such as violence or interference with personal property. It is considered "patently unjust" to expect an individual to refrain from committing a crime when they are threatened with physical violence or death.
• Rationale and Components: The rationale and components of duress are notably articulated in Lord Bingham's speech in the case of Hassan.
• Legal Purpose: Duress recognizes it would be unjust to find someone liable for a criminal offense if they were forced or compelled to act against their will.
• Burden of Proof: If a defendant raises the defense of duress, the burden of proof lies with the prosecution to disprove the existence of the defense.
• Exclusion via Intoxication: Lord Hailsham clarified that the defense of duress cannot be raised if the defendant's ability to resist a threat was eroded by voluntary intoxication.

Defining the Two Types of Duress

• The law recognizes two distinct variations of this defense:
• Duress of Threat: This occurs when a defendant commits a crime after being threatened by another person that the defendant, or someone close to them, would be killed or injured.
• Duress of Circumstance: This requires no specific threat directed at the defendant. Instead, it allows the court to look at the circumstances as the defendant believed them to be. The court assesses whether the defendant believed there was a threat of death or injury to themselves or someone they were close to.
• Historical Development of Duress of Circumstance:   - Wheeler: The Court of Appeal first recognized duress arising from circumstances. The defendant mounted a pavement and drove slowly to avoid a gang of $20$ to $30$ youths intending to injure him and his passengers. Initially, the trial judge withdrew the defense; the defendant pleaded guilty but the Court of Appeal later quashed the conviction.   - Conway: Although Wheeler created the defense, the specific phrase "duress by circumstance" was not used until this case.

The Three Criteria for Duress

• Distilled from the dicta of Lord Hailsham in Graham, there are three primary criteria for the defense:   - Criterion 1: There are specific crimes for which the defendant cannot rely on the defense of duress.   - Criterion 2: The defendant must commit the crime because of a threat of death or serious injury.   - Criterion 3: A reasonable person must have responded to the threat in the same way as the defendant.

Offenses Excluded from the Defense

• Case law establishes that duress cannot apply to:   - Treason (specifics not covered in this course).   - Murder.   - Attempted Murder.   - Situations where prior fault can be established.
• Murder and the Case of Howe: The House of Lords confirmed in Howe (involving appellants who killed victims in "truly horrendous ways") that duress is not a defense for murder.
• The Case of Wilson: A $13$-year-old boy helped his father murder a neighbor. On his father's instruction, he fetched an axe, beat the victim with a pole, and set a fire. Despite his fear of his father's violence, the Court of Appeal applied Howe and held he could not rely on duress.
• Critique of Murder Exclusion: The exclusion is criticized because it ignores "human frailty." For instance, a taxi driver held at gunpoint by terrorists and forced to drive for a terrorist operation would be held legally responsible for any resulting murders or attempted murders.
• Attempted Murder and the Case of Gotts: The House of Lords affirmed that duress is not allowed for attempted murder.
• Inconsistencies in Exclusions:   - Ness: The Crown Court confirmed duress could apply to conspiracy to commit murder.   - GBH with Intent: Duress is applicable for causing grievous bodily harm with intent.   - Logic Gap: It is deemed illogical that duress is allowed for conspiracy to murder but not attempted murder. Furthermore, if a defendant wounds a victim with intent, they can use duress; however, if the victim later dies of those injuries, the defense becomes unavailable.

Prior Fault and Voluntary Association

• The principle of prior fault applies if a defendant consciously or negligently places themselves in a position where they might have to rely on duress.
• Hassan: The defendant committed aggravated burglary after being threatened by a drug dealer with a reputation for violence. The House of Lords reinstated his conviction, ruling he had voluntarily associated with the dealer.
• The Lord Bingham Test: If a defendant knows, or ought reasonably to know, that they may be subject to compulsion by the person they are associating with (or their associates), they cannot rely on duress.
• Ally: This case confirmed the objective nature of the voluntary association test.

The Nature of the Threat (Substantive Requirements)

• Threshold of Harm: The threat must be of death or "really serious harm."
• Atkins: Fear of being hit in the face was deemed insufficient to meet the threshold.
• Baker: Fear of psychological violence is insufficient.
• Ashley: The courts ruled that a threat to rape could be sufficient.
• Immediacy vs. Imminence:   - Hudson and Taylor: Two girls (aged $19$ and $17$) lied in court (perjury) after being threatened that they would be "cut up" or hurt if they testified against a man named Wright. The Court of Appeal quashed their convictions, ruling the threat need only be "imminent," not strictly "immediate."   - Abdul Hussein: Iraqi citizens hijacked a plane with plastic knives and fake grenades to avoid deportation from Sudan back to Iraq under Saddam Hussein's regime. After $12$ hours at Stansted, they were arrested. The Court of Appeal ruled duress was available for hijacking and should have been put to the jury because the threat was imminent.   - Recent Narrows: Dicta in Hassan and Bachelor suggest a potential narrowing of the defense. Lord Bingham argued Hudson and Taylor wrongly weakened the defense. If there is an opportunity to escape or seek help, the defense likely fails.   - Heath: A defendant transported drugs after threats. Because he could have sought police help or moved to relatives in Scotland, he could not use duress as the threat was not immediate or imminent.
• Target of the Threat:   - Traditionally must be the defendant or immediate family.   - Hassan (Court of Appeal): Confirmed it could be anyone the defendant reasonably feels responsible for.   - G_A_C: The threat can be against a pregnant woman's fetus.   - Shayla: A vague threat against the public is insufficient.
• Source of the Threat (The Third Party Rule):   - The threat must come from a third party, not the defendant themselves.   - Roger and Rose: Appellants broke out of prison due to suicidal thoughts caused by sentence increases. The Court of Appeal dismissed the defense because the threat (suicide) did not come from a third party.   - Quail: Defendants used cannabis to manage chronic pain. The Court of Appeal ruled the cause (pain) was internal, not from a third party, so duress/necessity did not apply.
• Causal Link: In Valderrama Vega, the court confirmed the defendant only gets the defense if they would not have committed the offense "but for" the threats of violence, even if other threats (financial loss, exposure of homosexuality) also existed.
• Mistaken Belief: In Safi (another hijacking case involving Afghan nationals fleeing the Taliban), the court reinforced that the test is subjective; what matters is that the defendants "reasonably believed" the threat existed.

The Objective Standard: The Reasonable Person

• Criterion 3 (Graham): A "sober person of reasonable firmness" must not have been able to resist the threat. The jury must make a moral judgment on the defendant's resistance.
• Proportionality: In Abbott, it was stated that for more serious crimes, the defendant is expected to show greater resistance.
• Characteristics of the Reasonable Person (Bowden):   - The defendant in Bowden had a low IQ (lowest $2\%$ of the population) and committed deception offenses $40$ times over $2$ years after being threatened with petrol bombing.   - The Court of Appeal ruled that low IQ and suggestibility do not make someone a "person of reasonable firmness."   - Permitted Characteristics: Sex, age, pregnancy, or any recognized medical illness/psychiatric condition.   - Excluded Characteristics: Low IQ, susceptibility, and self-induced abuse of intoxicants.
• Hurst: An American woman imported cocaine because of a threat to kill her mother. Despite having a history of sexual and physical abuse that made her more susceptible to threats from men, the Court of Appeal dismissed her appeal. Her specific susceptibility was not a characteristic the jury could consider under the Bowden criteria.

Gender Critiques and Domestic Violence

• Nicole Lovelace's Argument: Duress fails to accommodate abused women coerced into crime.   - Statistics: Over $1/2$ of female prisoners are victims of domestic violence; $1/3$ have suffered sexual abuse. In contrast, male imprisonment is more often linked to unemployment or intoxicant misuse.   - Study Insight: Half of all women prisoners (in a US study) commit offenses to avoid further battering.
• Criticism of Legal Framework:   - The focus on physical threats over psychological ones (Baker) ignores the complexities of domestic violence.   - The narrowing toward "immediate" threats further excludes victims of long-term domestic abuse.   - The exclusion of susceptibility in Bowden is described as the "final nail in the coffin" for domestic violence sufferers.
• Baroness Hale's Dissent: In Hassan, she cited the negative impact that limiting the defense of duress has on victims of domestic violence.