Duress

• Duress


  A criminal defendant is forced to perform a criminal act by someone else
• Two types of duress

  • Threats
  • Circumstances
• The offence committed which duress provides a defence to is one which the law views as voluntary but which the defendant should not be held responsible for
• Duress is not a defence to murder (HOWE/WILSON) or attempted murder (GOTTS)
• Graham Test for Threats


  1. Was the D impelled to act as he did because he feared death or serious physical injury?

  2. If so, did he respond as a sober person of reasonable firmness, sharing the characteristics of the defendant, would have done?
• Elements of the duress defence for threats

  • The nature of the threat
  • The threat must be made in connection to the offence committed
  • The characteristics of the D
  • The effect of any intoxication
  • The immediacy of the threat and possibility of escape
  • Was the duress self-induced?
• Nature of the threat

  • The threat must be of serious physical harm however minor offence to be committed
  • There will be no defence of duress if the threat is towards property
  • Threats which are too minor to form the defence are merely mitigating factors for sentencing
  • Threats can also relate to a family member or someone whose safety the D is responsible for
  • It is unknown whether a threat to a complete stranger would be sufficient
• The threat must be made in connection with the offence committed


  The threat must be specific
• Characteristics of the defendant

  • Age
  • Sex/Gender
  • Physical health or disability
  • Pregnancy
  • Recognised mental disorder
• Characteristics not considered: D being unusually timid, low IQ, homosexuality, drug or alcohol addiction
• The effect of intoxication

  • Voluntary intoxication is not relevant to the defence
  • Involuntary intoxication might be if it makes D more vulnerable
• Immediacy of the threat and possible escape

  • The fear of death or serious harm must be immediate
  • The defence will not usually be available if the D had the opportunity to contact the police
• Self-induced duress


  Where the D voluntarily puts himself in a position where he is likely to be subject to threats, the duress is less likely to be available to him
• Duress is an excuse, so its existence does not necessarily result in an acquittal
• Martin Test for Circumstances


  1. Was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious injury would result?

  2. If so, may, a sober person of reasonable firmness, sharing the characteristics of the accused have responded to that situation by acting as the accused acted?
• Reasonable and proportionate action


  Action which would only be taken given the serious nature of the circumstances