Defences: Duress

• Duress can be used as a defence for all crimes with the exception of:

  • Murder (R v Howe 1987: "The ordinary man should be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.")
  • Attempted Murder (R v Gotts 1992)
  • Accomplice to Murder (R v Wilson 2007: even if D is young, weak or vulnerable)
• Are two different types of duress:

  • Duress by Threats - D is threatened with violence to take action by another person
  • Duress of Circumstances - D is required to take action due to the circumstances they are in

  the Burden of Proof is on the Prosecution, once the defence has been raised (although a judge can withdraw it)
• Requirements:

  1. The threat must be of death or serious injury
  2. The threat must be against D or someone close to D
  3. The crime to be committed must be specific
  4. The Graham test needs to be passed
  5. The threat must be 'imminent'
  6. There must be no possibility of escaping the threat.
• The threat of death or serious injury:

  • The Threat must be serious physical injury or death. Threats against property are insufficient.
  • Shayler 2001
  • Baker and Wilkins 1997
  • Valderrama - Vega 1985
  • R v Ashley 2012
• Shayler 2001:

  • "peril of death or serious injury... is an essential element"
  • Facts: An M15 agent who released classified documents to the press did not have a defence based on a vague notion that "someone could get hurt one day" - it had to be a specific threat.
• Baker and Wilkins 1997:

  Facts: A mother committed criminal damage to break down the door of the father's house to rescue her child. There was a fear of long-term psychological damage to the child.

  Held: Threats of psychological injury - however serious - are not sufficient. No defence.
• Valerrama - Vega 1985:

  Facts: Non-specific death threats, as well as threats to expose D's sexuality and his mountain of debt.

  Held: The threats regarding debt/ sexuality would not have been enough on their own, but with the threat of death they would be sufficient.
• R v Ashley 2012:

  • A threat to rape is sufficient.
• Threat to D or someone close to D:

  • This must be specific threat either to D personally, or someone close to the D.
  • This has usually been restricted to D's family members, although this rule is not set in stone.
  • It would also include those who D felt responsible for (e.g. customers)
  • R v Martin (Cohn) 1989
• R v Martin (Cohn) 1989:

  Facts: D drove whilst disqualified to take his son to work, and his wife threatened to commit suicide if he did not drive him.

  Held: The threat to his wife's life would allow him a defence of duress.
• Specific crime to be committed:

  • There must be a specific crime that D is asked to commit, nominated by the person making the threat.
  • R v Cole 1994
• R v Cole 1994:

  Facts: D owed money and was threatened with violence unless he paid back. He robbed two building societies to get the money.

  Held: Duress not allowed as there was no nexus (connection) between the threat and the crime. D was not told specifically to rob the money, just to pay back his debt.
• Graham test must be passed:

  • The defence is not available just because D reacted to a threat; the threat must be one that the ordinary man would not have resisted.
  • The test comes from case of R v Graham 1982, and was approved in R v Howe 1987.
  • R v Bowen 1996
  • R v Flatt 1996
• Graham test must be passed:

  1. Was D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death?
  2. If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way.
• Graham test must be passed:

  1. Subjective test - asks what the D themselves thought - R v Martine (DP) 2001 = the jury can take into account D's mental condition (schizoid-affective state) in deciding if D thought the threat was real.
  2. Objective test - asks what a reasonable person would do - R v Bowen 1996 = decided what counts as "shared characteristics" - age, pregnancy, serious physical disability, recognized mental illness or psychiatric condition, sex.
• R v Bowen 1996:

  Also stated that in the second limb of the Graham test, the following cannot be taken into account:

  Low IQ, Vulnerability, Suggestibility or Sexuality.
• R v Bowen 1996:

  Also stated that in the second limb of the Graham test, the following cannot be taken into account:

  Low IQ, Vulnerability, Suggestibility or Sexuality.
• R v Flatt 1996:

  Added to the Bowen characteristics that self-induced characteristics due to alcohol or drug abuse (e.g. sniffing glue) could not be considered.
• The threat must be imminent:

  • The threat must be 'imminent' (happening soon) but does NOT need to be 'immediate'
  • R v Abdul-Hussain 1999
• R v Abdul-Hussain 1999:

  • Defence was allowed for D's who hijacked a plane to escape execution in Iraq (plane landed in the UK).
  • Court of Appeal stated three rules for Duress:

  1. There must be imminent peril of death or serious injury to the D or those for whom D has responsibility.
  2. The jury must agree that this peril was in D's mind at the time of the offence so as to overbear D's will.
  3. Execution of the threat need not be immediate.
• Must be no possibility of escape:

  • If D has a chance to escape from the threat but does not take it, they cannot use the defence:
  • R v Gill 1963
  • R v Hudson and Taylor 1971
• R v Gill 1963:

  • D threatened to steal a lorry, but was left alone for a period of time when he could have called the police or escaped.
  • He could not use the defence as he had chance to escape and he did not.
• R v Hudson and Taylor 1971:

  • Two teenage girls lied in court as they were being threatened by known violent men who were sat in the public gallery in court.
  • Defence was allowed even though they could not have gone to the police.
• Duress and Gang Membership:

  Additionally, duress cannot be used as a defence where D has voluntarily joined a gang in which they are aware violence is used, and is then threatened with violence in order to commit a crime.

  R v Hasan 2005:

  If D voluntarily associated with others who are engaged in criminal activity, and he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence, then the defence will not be available.
• There are two different types of duress:

  1. Duress by threats - D is threatened with violence to take action by another person.
  2. Duress of Circumstances - D is required to take action due to the circumstances they are in.

  There Burden of Proof is on the Prosecution, once the defence has been raised (although a judge can withdraw it).
• Duress of Circumstances:

  • This is where D may be forced to act due to their circumstances.
  • There may not be specific threat made, but D is in a situation where they are forced to break the law in order to escape.
  • This was only recognized by the courts as a valid defence in 1986, in the case of R v Willer. It was originally only used for driving offences, but is now seen as a defence for all crimes except murder, attempted murder and accomplice to murder.
  • R v Willer 1986
  • R v Conway 1988
  • R v Martin (Cohn) 1989
  • R v Pommel 1995
  • R v Cairns 1999
• R v Willer 1986:

  • D and a passenger were driving down a narrow alley when the car was surrounded by a gang of youths who threatened them. D drove on the pavement (which is a crime) in order to escape them. The defence applied.
• R v Conway 1988:

  • D had been targeted in a shooting of a car passenger a few weeks prior. D thought he was being chased by the person who had shot at his car, so drove off at speed and recklessly to escape. It was actually a plain clothed police officer. D's conviction was quashed on appeal as defence should have been put to the jury.
• R v Martin (Cohn) 1989:

  • D drove whilst disqualified to take son to work as wife threatened to commit suicide if he didn't (she had tried to do so previously).
  • He pleaded guilty but this was quashed on appeal as defence of duress of circumstances should have been available to him.
• R v Martin (Cohn) 1989:

  • Court stated defence requires similar test used for Duress of Threats - from the case of R v Graham requiring that:

  1. The D must have reasonable belief in circumstances.
  2. This belie must have lead D to have good cause to fear death or serious injury would result if he did not comply; and
  3. Sober person of reasonable firmness, sharing characteristics of D, might have acted as D did.
• R v Pommel 1995:

  Possession of unloaded shotgun - D claimed to have taken it off someone the night before to sop him 'doing some damage' with it and claimed he was going to take it to police later on.

  Held - defence should be put to jury, applies to all offences except for murder and attempted murder. D's conviction quashed.
• R v Cairns 1999:

  • D's car was surrounded by youths - one of whom jumped on D's bonnet. D drove off, injuring the youth on his bonnet.
  • Held - defence allowed as D thought the threat was genuine - it depended what D perceive as a threat, even if the threat was not really present.