Duress by threat

• Application

  Duress is a defence at common law and is available where the D is forced to perform the criminal act by someone else. This defence is available where the D has been effectively forced to commit a crime due to a threat of death or serious injury.

  
  

  It is available to all crimes except murder, attempted murder and accomplice to murder.

  
  

  The test for duress by threat was laid down in the case of Graham and affirmed in Howe and more recently in Hasan (2005).

  
  

  The Graham two-part test:

  A) was the defendant impelled to act as he did because he feared death or serious injury?

  B) If so, did he respond as a sober person of reasonable firmness sharing that characteristic of the D would have?

  
  

  1) First part of the test Nature and seriousness of the threat:

  
  

  a) The nature of the threat

  b) To whom the threat should be made

  c) The offence committed must be connected to the threat

  d) The immediacy of the threat

  
  

  A. The nature of the threat:

  This is a subjective test and the threat must be of death or serious injury. The jury is entitled to look at the cumulative effect of the threats on the D and the defence will be available as long as there is a threat of death or serious violence in there.

  
  

  · Psychological injury will not suffice- Baker

  · Severe pain is insufficient -AG's Ref no2 2004

  · Rape is a serious injury for the purpose of duress - Ashley

  · Threats to expose adultery is insufficient - Singh

  · Threats to sexuality is insufficient- Valderrama-Vega

  
  

  B. To whom the threat should be made:

  The threats can be made to the D themself, a close family member, someone close to them or a person whose safety they feel responsible for.

  
  

  - Family (Martin)

  - Passenger (Conway)

  - Boyfriend (Wright)
• Pt 2 Application

  C)The offence committed must be connected to the threat:

  
  

  The defence can only be used if there is a connection between the threat of serious violence made and the offence committed (Cole - defence failed).

  
  

  D)The immediacy of the threat:

  
  

  The longer the time gap between a qualifying threat and the commission of the offence, the less inclined the courts will be to allow the defence. The argument is that the longer the gap, the easier it is for the D to seek police protection.

  
  

  - Pommell (delay of a few hrs with a good reason)

  - Abdul-Hussain (fear of death)

  
  

  Only discuss these situations if relevant:

  
  

  - Safe avenue of escape = duress can only be used as a defence if the D is placed in a situation where he has no safe avenue of escape (Gill - not available) Unless police protection would be ineffective (Hudson v Taylor)

  
  

  - Self-induced duress = Where D voluntarily puts himself in a position in which he was likely to be subjected to threats to commit an offence - defence less likely to be available.

  
  

  - Voluntarily in situation (Sharp)

  - No knowledge of violence (Shepherd)

  
  

  The case of Hasan now clarifies when the defence will be denied because of voluntary association with others, the defence will fail if:

  
  

  - D foresaw the risk of being forced to commit a crime by threats of violence

  - if the offence D committed was of the same type as the offence that D foresaw he would be forced to commit
• Pt 3 Application

  2) Second part of the test Characteristics of the D:

  
  

  For this part of the test, the jury considers whether the D would respond as a sober person of reasonable firmness sharing the characteristics of D.

  
  

  The case of Bowen (1996) shows which characteristics can be taken into account:

  1. Age and Sex

  2. Pregnancy

  3. Physical health or disability

  4. Psychological illness or disorder

  
  

  Characteristics that cannot be taken into account:

  1. The mere fact that someone is vulnerable, timid or susceptible to threats.

  2. Characteristics which would be relevant when considering loss of control.

  3. Characteristics due to self-induced abuse - such as alcohol, drugs, glue sniffing