duress

• duress is a full defence but is not available for the following crimes:

  • murder (R V Howe)
  • attempted murder
  • treason
• there are 2 possible defences in duress:

  • defence of duress
  • duress of circumstances
• duress is a criminal law defence based on the fact that the defendant has been effectively forced to commit the crime.
• the threat for duress has to e of death or serious injury, subject to GBH anything less will not suffice.
• R V Valderrama-Vega: cumulative effects of serious threats can be considered
• the threat must be directed against:

  • the defendant
  • his or her immediate family
  • someone close to them
  • a person for whose safety the defendant would reasonably regard him or herself responsible
• jury consider a 2 stage test so decide if the defence succeeds:

  • was the defendant compelled to act as he or she did because they reasonably believed they had good cause to fear serious injury or death?
  • would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way?
• R V Bowen- characteristics which can be taken into account for duress. D had a low IQ but this isn't allowed to be accounted for. The following may be relevant;

  • age
  • pregnancy
  • physical disability
  • recognised mental illness
  • gender
• R V Cole- did the threats relate directly to the crime committed by the defendant?
• R V Gill- was there any evasive action the defendant couldve taken?
• R V Hasan- cannot use duress if they have voluntarily laid themselves open to threats. Such as being part of a violent gang or group.
• duress of circumstances differs from duress in that the circumstances dictate the crime rather than the person.
• R V Willer- only way D could escape a group of youths threatening him in his car was to drive on the pavement. He was charged with reckless driving however the appeal was allowed as it was duress of circumstances.
• R V Pommel- duress of circumstances. This case confirmed that this was a defence to all crimes except murder, attempted murder and treason like duress.
• R V Cairns- was the defence available when the threat was perceived as threatening by the defendant but there was no threat. Can be allowed if the threat was reasonably perceived as genuine.
• In R V Hasan, Lord Bingham set out the following tests which need to be satisfied:

  • threat of death or serious injury
  • threat directed against defendant or their immediate family or someone close to them
  • whether defendant acted reasonably in light of the threats, judged objectively
  • threats relate directly to crime committed by D
  • there was no evasive action D could've took
  • defendant cant use the defence if they have voluntarily laid themselves open to threats.
• R V Sharp- 'when a person has voluntarily joined a criminal gang which he knew might bring pressure to commit an offence he cannot use the defence.'
• Court of Appeal in Abdul-Hussain that for duress of circumstances;

  • must be immediate peril of death or serious injury to D or those in their responsibility
  • peril must operate on defendant's mind at the time of committing the otherwise criminal act so as to overbear their will; for jury to decide
  • execution of threat need not be immediately in prospect
  • there is no avenue of escape