Duress

• Duress

  Where the defendant is forced by a threat to perform the criminal act
• for what crimes can a defence of duress be used ?

  All offences except:

  murder - Howe (1986) and attempted murder - Gotts (1992)
• The test for duress - Graham (1982) set test which was updated in Hasan (2005) 


  Did the def. act as he did because he feared death or serious injury to himself or another?

  if yes:

  would a sober person of reasonable firmness sharing the same characteristics as the accused have responded in the same way?

  If yes, the defence is available.
• The nature of the threat

  must be death or serious injury
• Valderrama-Vega (1985) 


  VV was involved with the illegal importing of cocaine. he claimed he did it as he had been threatened with death and exposure of his homosexuality. court held that they could take account of the death threats but not the threat to excuse his homosexuality.
• Cole 


  there must be a link between the threat and the crime committed under duress.

  cole owed money to a loan shark. the loan shark said 'i'll beat you up if you don't get my money'. cole robbed two building societies to get money and claimed duress. defence failed as he had not been forced to commit the robberies, he was simply told to get the money.
• What characteristics are relevant to the defence of duress?

  age, pregnancy, serious physical difficulties, mental illness and sex.
• which characteristics are not relevant to the defence of duress?

  low IQ or being abnormally suggestible
• Bowen (1996) 


  B had a low IQ and obtained good by deception for two men who had told him they would petrol bomb him and his family. court held that a low IQ was irrelevant in deciding whether the defendant found it more difficult to resist threats.
• Hasan ( 2005) - can the threat be avoided?

  threat must be immediate and courts will always consider whether the defendant would have escaped or avoided the threat.
• Self-induced duress - what does this mean?


  where defendant has exposed himself to a situation where he may be put under duress to commit criminal acts. for example by joining a criminal gang known to use violence or becoming indebted to a drug dealer.
• Sharp (1987)


  defendant joined gang known to be violent robbers. he claimed he wanted to leave the gang before the last robbery. court stated he could not use duress as a defence as he knew that the gang was violent.
• shepherd (1987)

  defendant joined a group of non-violent shoplifters. he wanted to leave but was threatened with violence to continue. He had no knowledge that the gang was likely to use violence and duress was successful.
• duress of circumstances

  where circumstances force you to commit a crime to avoid death or serious injury. for example, if a person damages property to avoid a house catching on fire.
• Duress of circumstance test - willer (1986)

  1. did def. act as he did as reasonable believed the situation gave him good reason to fear that otherwise death or serious injury would result to himself of another? If so
  2. would a sober person of reasonable firmness sharing the same characteristics as the accused have behaved as the defendant?
• willer (1986)

  w was driving in car and was confronted by a gang and the only way to escape was to drive along the pavement. duress of circumstances accepted as a defence.
• martin (1989)


  m's wife threatened to commit suicide unless he drove his stepson to school. he was convicted of driving whilst disqualified. court held this was sufficient for duress of circumstance.
• pommell (1985)


  p found by police with loaded gun. h said he had taken it off of someone who was going to use it and was going to hand it in. court ordered a retrial so the defence of duress could be put to the jury.
• defence of necessity

  very rarely successful but may affect the sentence.
• southwark london borough v williams (1971)


  lord denning - homelessness not accepted as a reason for squatting. 'necessity would open a door which no man could shut'.