Duress

• What is duress?

  Duress = if someone is forced to do something against their will or because threats have been made to them.

  The idea is that D is so terrified that they are no longer "an independant actor" so the AR is no longer voluntary and MR is not present.

  Full defence.

  Prosecution must prove beyond reasonable doubt that D was not acting under duress.

  Not available for murder (Howe/Wilson), attempted murder (Gotts) or treason.
• Duress by threats

  Can be relied on where D is threatened with serious violence by another person unless he commits an offence.

  (R v Hasan) sets out 6 criteria/tests which must be met:

  1. Threat is to cause serious injury or death.
  2. Threat must be directed against D or their immediate family or someone close to them.
  3. Reasonableness of D's actions will be judged objectively.
  4. Threat must relate to the crime committed by D.
  5. There was no evasive action D could have taken.
  6. D cannot use defence if they have voluntarily laid themselves open to the threats.
• 1. Seriousness of threat

  Threat must be of death or serious injury, less threats not sufficient.

  1. Providing there are serious threats then the jury may consider the cumulative effect of a number of threats (Valderama-Vega)
  2. The threat must be effective at the moment the crime is committed but it does not need to be able to be carried out immediately (Hudson & Taylor/ Abdul Hussain)
• 2. Threat to whom?

  Threats to D, D's family or friends are sufficient.

  (Martin) - Person threatened to kill herself unless D drove whilst disqualified - sufficient.

  (Conway) - Even a threat to passenger in D's car is sufficient.
• 3. Reasonableness - Graham Test

  R v Graham - Jury must consider two-stage test:

  1. Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death?
  2. Would a reasonable man with similar characteristics to D have responded in the same way?

  (Bowen) - accepted the following as "relevant characteristics": age, pregnancy, serious physical disability, recognised mental illness or psychiatric disorder, sex.

  CANNOT TAKE INTO ACCOUNT LOW IQ.
• 4. Did the threats relate directly to the crime committed by the D?

  There must be a threat in order to make D commit a specific offence.

  R v Cole - D claimed him and his girlfriend and child had been threatened to repay money. D didn't have the money so carried out robberies to do this - not allowed as defence.
• 5. No safe avenue of escape?

  Defence only available if D has no safe avenue of escape (Gill).

  If D has the option to go to the police and it was not expected that the threat was to be carried out immediately, then D would be expected to take that course of action.

  HOWEVER - there may be situations where you are so afraid of consequences that you do not go to police (Hudson & Taylor)
• 6. Did the D lay themselves open to threats?

  Intoxication:

  • Vol. Intox. and a mistaken belief in threat will not allow the defence as the mistake is unreasonable.
  • Where intox. is irrelevant to the duress, the D is able to use the defence.

  Self-Induced:

  • Where D has brought the duress on himself through his own actions, he is then generally not able to use the defence e.g. where D has joined a criminal gang (R v Hasan)