Duress by Circumstances Knowledge Summary

• Definition: the defence of duress by circumstances is where D is forced to commit a crime because of the circumstances in which they found themselves (R v Willer)
• • R v Pommell - it is available to all crimes except murder (Howe), attempted murder (Gotts) and treason.
  • R v Martin confirms the 2 part Graham test is used: Did the D act reasonably and proportionately in the circumstances to avoid a threat of death or serious harm. Would a sober person, of reasonable firmness, sharing D's characteristics, have acted in the same way?
• Graham Test Part 1: Was D compelled to act because they reasonably believes they had a good reason to fear death or serious injury?

  1. What was the threat - must be of death or serious harm
  2. Who was the threat aimed at - D, D's family, someone whom the D is responsible for or a stranger
  3. Specific offence - the D must have been told to commit a specific crime
• 4. When - the threat must be unavoidable and imminent, no safe avenue of escape, imminent: Abdul-Hussain illustrates that there must be imminent peril of death of 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.

  5. Not self-induced - the defence will fail if D associated with violent people who are known to make threats e.g. criminal gangs or terrorist.
• Graham Test Part 2: Would a sober person, of reasonable firmness, sharing D's characteristics, have acted in the same way?

  • Sober means that the effect of drink or drugs on the defendant's ability to resist the threats cannot be considered, R v Flatts
  • 'Reasonable firmness' is objective; the fact that a defendant is particularly vulnerable or timid cannot be taken into consideration.
  • 'Sharing D's characteristics' include; age, gender, pregnancy and disability but not very low IQ (Bowen) nor self-induced characteristics like alcohol or drug abuse.
• Outcome:

  Successful = acquitted

  Unsuccessful = convicted