Duress, necessity

• Duress


  A defence in criminal law where a person commits a crime due to another person threatening to kill or seriously injure them or others
• Two categories of Duress


  • Duress by Threats: where a person commits a crime due to another person threatening to kill or seriously injure
  • Duress of Circumstances: the circumstances are such that D believes that unless he commits a crime, he or others will suffer death of serious injury
• Excusatory offence


  D has committed an offence, but done so because he was threatened by X with death or serious injury if they refuse
• Duress is developed at common law and is uncodified
• Burden of proof for duress

  D must prove some evidence of duress before it will be considered in court and then the legal burden is upon the prosecution to disprove it
• Overuse of the defence has led to narrow interpretation of the various elements of duress by the courts – has it become too restrictive?
• Exceptions where duress is not available as a defence

  • Murder(Howe), Wilson [2008]
  • Attempted Murder(Gotts)
  • Treason (steane)
• Criteria for the defence of duress as established by Lord Bingham in Hasan [2005] UKHL 22


  • There must be a threat to cause death or serious injury
  • The threat must be directed against D, D's immediate family, someone close to D or someone D has responsibility for
  • The D must have acted reasonably to the threats
  • The threats must relate directly to the crime committed by D
  • There must be no evasive action D could have taken
  • D cannot use the defence if he has voluntarily exposed himself/herself to the threats
• Threat of serious harm

  Must be threat of death or serious injury - Radford [2004] EWCA Crim 2878. WHERE d commits minor offence in fear of greater harm that does not threaten life or serious injury, D will have to use defence of necessity instead
• Where D commits a minor offence in fear of greater harm that does not threaten life or serious injury, D will have to use defence of necessity instead
• 1. must be threat of death or Serious psychiatric injury

  Obiter in Ashley [2012] EWCA Crim 434 indicated that a threat to rape D will be sufficient to argue duress. Brandford [2017] Crim LR 554 - C/A confirmed that mere pressure based on the exploitation of a relationship without a relevant threat of death or really serious harm, will not be sufficient for D to plead duress
• Who the threat must be against


  • Defendant
  • Wife and immediate family - Martin [1989] 1 All ER 652
  • Someone close to D - common law
  • Anyone D has responsibility for - Hasan [2005] UKHL 22 [21]
• R v Shayler [2001] 1 WLR 2206 - the evil must be directed towards the D or a person or persons for whom he has responsibility or persons for whom the situation makes him responsible
• Abdul-Hussain [1999] Crim LR 570 - Imminent peril of death or serious injury to the D, or those to whom he has responsibility, is an essential element of both types of duress
• Rodger and Rose [1998] 1 Cr App R 143 - What if the threats come from D himself in the form of suicidal thoughts?
• Reasonable belief in threat

  D's belief must be reasonable. A reasonable person in D's position must also believe that there was a real threat of death or serious injury - Safi [2003] EWCA 1809
• Valderrama-Vega [1985] Crim LR 220 - What about situations where D has several reasons for committing the offence?
• Objective test for reasonableness of D's actions


  Was D compelled to act as he/she did because they reasonably believed they had good cause to fear serious injury or death? Would a reasonable and sober person, sharing the same characteristics as D have reacted in the same way to the threats? - Graham [1982] 1 All ER 801
• Bowen [1996] 2 Cr App R 157 - Court have gradually liberalised the range of characteristics that can be taken into account when applying the above test
• Requirement for threats to relate directly to the crime

  Cases of Cole [1994] Crim LR 582 and Ali [1995] Crim LR 303 - duress by threats requires the individual making the threats to have provided an indication as to the type of crime that D must commit
• Principle of imminency


  The longer the time between the threat and D's offence, the more opportunity D had to escape the threat without offending. However, the threatened harm may not be immediate, as long as it is imminent and operative at the time D offends - Abdul-Hussain [1999] Crim LR 570, Hudson and Taylor [1971] 2 All ER 244
• Voluntary exposure to threats


  Duress will be excluded where D voluntarily associates with another in circumstances where a reasonable person would have foreseen risk of future coercion - Sharp [1985] Cr App 212, Hasan [2005] UKHL 22, Ali [2008] EWCA Crim 716
• Duress of Circumstances


  • Extension of duress by threats
  • Where there is no direct threat and/or demand from another party, but the circumstances pose a threat of death or serious injury which compel D to commit the offence
  • Same exclusions apply as for duress by threats
• Duress of Circumstances: Circumstantial threat and demand


  • Circumstances dictate the crime rather than a person
  • Threat must still be one of death or serious injury
  • Threat cannot come from D himself - Rodger and Rose [1998] 1 Cr App R 148
• Duress of Circumstances: D's response to the perceived threats


  • All tests for duress by threats are still relevant
  • D must have made reasonable efforts to avoid offending and demonstrate reasonable efforts to resist the threats
  • Sufficient for D to show that he acted because he/she reasonably perceived threat of serious physical injury or death
  • No requirement to prove that the threat was an actual or real threat - Abdul-Hussain [1999] Crim LR 570
• How to approach a problem question

  1. First decide whether the defence of duress by threats or duress of circumstances applies

  2. Next, consider the following:

  3. Is there a threat to cause death or serious injury?

  4. Is the threat directed against D, D's immediate family, someone close to D or someone D is responsible for?

  5. Did D act reasonably in response to the threat? (Apply Graham)

  6. Do the threats relate directly to the crime committed by the D?

  7. Was there no evasive action the D could have taken instead?

  8. Has D voluntarily exposed himself/herself to the threats?

  9. Identify the issues, explain the relevant legal rules and apply these to the facts of the problem scenario. Don't forget to conclude! (IRAC)

  10. Use case law and statute law where appropriate to support your argument