#4612 - Duress - GDL Criminal Law

Duress by Threat

• If established it excuses what would otherwise be criminal conduct: complete defence

• Only estblished where there is a nexus between the threat and the crime

• R v Cole: the offence charged must be stipulated by the person making the threat: in this case it was not so there was no duress

• Possibility of duress of circumstances exists but the D would have to get around the problem of immediacy

• Defence was first defined in CA R v Graham – most recent review by HL in R v Hasan

Elements: laid out in Hasan

1. There must be a threat to cause death or serious injury

   • The threat must be of death or serious personal injury: threats vs. property are insufficient (M’Growther); DPP for NI v Lynch

2. The threat must be directed against the D, his immediate family or (someone close?)

   • In Hasan Bingham said the threat must be ‘if not the the D or a member of his immediate family, to a person for whose safety the D would reasonably regard himself as responsible

   • R v Shayler: D could regard himself as responsible for those he has never met before (e.g. to the potential victims of a bomb)

3. The test is largely objective

1. Reasonable belief/good cause to fear

   • R v Graham: D’s belief that he has been threatened must be reasonably held

   • R v Martin: CA suggested more subjective view (whether the D genuinely believed) but this doesn’t stand in light of Hasan (Bingham’s comment – must be reasonable and genuinely held)

   • If D makes a mistake, it must be a reasonable mistake

2. Would a reasonable person have responded in the same way?

   • Sober person of reasonable person, sharing the same characteristics as the D (Age, sex etc.)

   • Physical characteristics can be considered (e.g. brittle bones, pregnant) although low IQ has been excluded from list that the court should consider – although ‘recognised illness or psychiatric condition’ has been allowed (R v Bowen)

   • Abott: proportionality - the more dreadful the crime, the heavier the evidential burden of the accused advancing such a plea, and the stronger the duress needed to have been

4. The criminal offence has been directly caused by the threats which are relied upon

   • R v Valderrama-Vega: Cumulative effect of all the threats (serious injury and threat of exposing homosexuality) - the threat of serious injury need not be the sole reason for carrying out the offence, provided that he would not have acted had it not been for the threat of death/serious injury

5. Duress is only available if there was no evasive action he could reasonably have been expected to take

   • Where the D had an opportunity to avoid the consequences of the threat (i.e. by going to the police) the plea of duress is unlikely to be successful (although failure to take such opportunity will not always prevent the defence from operating

   • R v Hudson & Taylor: Two girls gave false evidence because of threat of serious injury (issue of remoteness – here there was sufficient proximity – the girls wouldn’t have been protected even though threat wasn’t ‘immediate’): jury should consider age and circumstances

     • Hasan: HL saw this decision as ‘indulgent’: could have taken evasive action – did not approve the decision

6. The D may not rely on duress to which he has voluntarily laid himself open

   • Where the D exposes himself to the risk of being threatened (e.g. by joining a violent gang) he will not usually be allowed the defence

   • R v Sharp: Accused joined gang of robbers, knowing they used firearms – he could not use defence of duress when he took part in a robbery: a man must not ‘voluntarily put himself in a position where he was likely to be subjected to such compulsion’

   • But defence might succeed where the D could not have foreseen the possibility of violence being used:

     • R v Shepherd: CA – when D joins a criminal enterprise and has no knowledge of their propensity for violence, but is then threatened in order to get him to carry out other activities, he may rely on defence (here gang of shoplifters)

   • R v Hasan: HL – objective test for knowledge of possible coercion:

     • Whether D ‘foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence’ (Lord Bingham)

   • R v Ali (Isar): Association need not be with criminals in order to prevent the defence from operating

Duress in relation to murder

• R v Howe & Others: HL – duress not available for offence or murder or accessory to murder

• R v Gotts: or attempted murder

Necessity

• D forced to act because a failure to act would have resulted in a greater danger arising (a threat to another, or some outside factor) (The doctrine of the lesser of two evils)

• The General Rule

  • There is no defence of necessity

  • R v Dudley & Stevens: it is not a defence to murder

  • London Borough of Southwark v Williams: no defence to a homeless person in a civil case involving trespass to unoccupied housing

  • Buckoke v GLC: argument for a defence of necessity failed in respect of a fireman driving through a red light (but this is now one of the statutory exceptions )

• Exceptions:

  • Mouse’s Case

  • Specific statutory provisions

  • Re A (Minors) Conjoined Twins: Medical Treatment

  • Re F (Mental Patient: Sterilisation) – medical cases - in interest of the ‘victim’

Duress of circumstances

Development of the defence

• 1980’s: courts began to recognise defence of necessity, calling it duress of circumstances

  • R v Willer: confronted by a gang of youths and drove his car over the pavement and into a shopping precinct to escape

  • R v Conway: reckless driving – drove away recklessly when approached by two plain clothed police officers who he believed to be potential assassins

  • R v Martin: Drove whist disqualified after threats from his wife that she would commit suicide if he did not

The test:

• Martin: CA gave test based on the Graham test for threats:

1. Was the D impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result?

2. Would a sober person of reasonable firmness, sharing the characteristics of the D have responded in the same way?

Nature of the threat

• Death or serious injury - R v Martin

• R v Pommell:...