Duress Essay Model Answer

• Duress is a potential defence available to X (the defendant). Duress by threats is when the defendant commits a crime because of a threat made by another person. Here, X may argue he committed (state offence) because of the threat made by V.
• Duress can be used as a defence to all crimes, except murder, attempted murder and possibly treason.
• The test for duress was set out in R v Graham as a two-part test, which, if successful, means that the defendant will be acquitted.
• Part 1 of the Graham test is subjective and considers whether D was forced to commit the offence because he reasonably believed that otherwise, death or serious injury would follow (R v Hasan, 2005). Case law has considered the nature and seriousness of various threats and it has been determined that neither threats of financial ruin (M'Growther, 1746) nor threats to reveal sexuality (R v Valderrama-Vega 1985) nor the revelation of an affair (R v Singh) are sufficient. However, threats to 'cut up' (R v Hudson and Taylor 1971) would be sufficient.
• The court will also consider who the threats are directed towards. The defendant must be force to act because he feared death or serious injury to himself (R v Graham, 1982), an immediate relative (R v Ortiz, 1986) or someone that the defendant reasonably regards themselves to be responsible for (R v Shaylor, 2001).
• The threat made against X by Y must be specifically set out the required conduct of X, ie there must be a specific offence that X is told to commit. If the threat is vague them there is no duress. In R v Horne (1994) the threat to 'sort out' a defendant was too vague even though the defendant was specifically told to commit fraud. In R v Cole (1994), a threat of serious injury was made but no specific instruction about what to do was given.
• The threat must be unavoidable (so no safe avenue of escape) and imminent; if the defendant could take evasive actions, this defence is not available. Threats relating to stealing a lorry in a weeks time (R v Gill) are not imminent and the d had time to 'raise the alarm.'
• Abdul-Hussain illustrates that there must be imminent peril of death or serious injury to the d or to whom he has responsibility for, it must be operating on the d's mind at the time of committing the criminal act and the execution need not be immediately in prospect. In addition, the defendant must reasonably expect retribution to happen immediately or almost immediately (R v Hasan).
• If the duress is self-induced because the defendant is a member of a violent criminal gang and he should reasonably have foreseen the risk of compulsion by threats of violence, the defence is not available, R v Hasan.
• Part 2 of the Graham test is objective and considers whether a sober person of reasonable firmness sharing the defendant's characteristics would have reacted to the situation by behaving as the defendant did. 'Sober' means that the effect of drink or drugs on the defendant's ability to resist the threats cannot be considered (R v Flatt).
• 'Reasonable firmness' is objective; the fact that a defendant is particularly vulnerable or timid cannot be taken into consideration. In terms of 'sharing characteristics', the court will consider age, gender, pregnancy and disability but not very low IQ (R v Bowen) nor self-induced characteristics like alcohol or drug abuse.
• Therefore, the D will/will not be successful in raising duress.