Special study paper Jan 2008 - Duress notes
• Duress is general defence, it can currently only be used as a full defence for most offences but, it cannot be used as a defence to murder, attempted murder or treason
• The D does not deny that he has committed the Actus reas with the necessary Mens rea (guilty mind).
• The D does not ask for his/her actions to be justified but just to be excused (absolute discharge). Duress by threats occurs when the defendant was forced by another’s threats to commit an offence.
• The threat has to be of serious injury or death to the defendant or someone the defendant feels close to.
For example, the defendant is threatened that, if he does not rob a bank, he or someone he feels responsible for or cares for will be killed.
Lord Bingham R v Hasan 2005 "This defence, if successful, 'excuses what would otherwise be criminal conduct’, it is a ‘defence which … exonerates the defendant altogether"
‘Duress does not afford a defence to charges of murder’ R v Howe 1987
Hale -Pleas of the Crown 1800 ‘If a man be desperately assaulted, and in peril of death, and cannot otherwise escape unless to satisfy his assailant’s fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact; for he ought rather to die himself, than kill an innocent.’
‘the threat relied on must be to cause death or serious injury’ Precedent- DPP v LYNCH 1975 and R v ABDUL-HUSSAIN & OTHERS 1999
R V Macgrowther 1746- Lee CJ ‘the only force that does excuse is a force upon the person and present fear of death.’
"the threat must be directed against either the defendant or particular third parties." It used to be the case that the threat had to be to the defendant or his immediate family. For example, in R v Ortiz 1986 - "threats to the defendant’s wife or family appeared to be sufficient, this has been extended to include third parties ‘for whose safety he would reasonably regard himself as responsible"
<nowiki>Insert non-formatted text here</nowiki>R v CONWAY 1989 - "the threat was to the passenger in the defendant’s car"R v WRIGHT 2000 - "the threat related to the defendant’s boyfriend."
"the threat will only be treated as operating or substantial - and the defendant will only be excused - if a person of reasonable firmness, sharing the characteristics of the defendant, might have succumbed."
The Objective approach.
Lord Lane CJ - R v Graham 1982
‘As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness.’
However the personal characteristics of the defendant will be taken into account
Lord lane ‘Threats directed against the weak, immature or disabled person, may well be much more compelling than the same threats directed against a normal healthy person.’
The age and sex of the defendant are relevant characteristicsR v Bowen 1997- Low IQ is not a relevant characteristic
Stuart-Smith LJ In Bowen - ‘In most cases it is probably only the age and sex of the defendant that is capable of being relevant.’ However he did mention some other circumstances like, ‘pregnancy, where there is added fear for the unborn child; and serious physical disability, which may inhibit self protection’.
"Causation must be in place."
Lord Bingham - ‘The defence of duress is available only where the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied upon.’
- source 5- Line 12
R v Cole- "There has to be a sufficient nexus between the threat and the offence"
"It must be impossible to take evasive action." I.e. ...." The defendant may excuse his criminal conduct on grounds of duress only if … there was no evasive action he could reasonably have been expected to take.’-Lord Bingham again.
Immediacy of the threat and the possibility of seeking police protection are important mattersR v Hudson & Taylor - The recorder was wrong to instruct the jury that the threat was not immediate. Source 5*- Line 17-19
Lord Morris in Lynch commenting on Hudson and Taylor- ‘whether the threats were so real and were at the relevant time so operative and their effect so incapable of avoidance that, having regard to all the circumstances, the conduct of the girls could be excused’.
The court in the case of Hudson and Taylor did not lay down any hard rules concerning this subject other than saying that…
Widgery LJ - ‘It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a ‘present’ threat in the sense that it is effective to neutralise the will of the accused at that time’
“The defence will not be available if there is ‘a safe avenue of escape”
Lord Morris - “the subject of duress could reasonably have extricated himself or could have sought protection or had what has been called a ‘safe avenue of escape”
A person cannot rely on the defence if he has voluntarily exposed himself to the risk of such duress, for example by joining a criminal organisation or gang.
R v Fitzpatrick 1977 - the defendant had voluntarily joined the IRA and was therefore unable to plead duress based on threats from that organisation as a defence to, i.e., armed robbery carried out on its behalf.
Musthill LJ - R v Shepherd 1987 – “there is no defence ‘if the risk of duress is freely undertaken’ by mixing with bad company.”… ‘Members of so called paramilitary illegal groups, or gangs of armed robbers, must be taken to anticipate what may happen to them if their nerve fails, and cannot be heard to complain if violence is indeed threatened.’
However a trial judge also added; “If trouble materialises unexpectedly and puts the D into a dilemma in which a reasonable man might have chosen to act as he did, the concession to human frailty is available to the defendant.”
Necessity cannot be used as a defence to murder, attempted murder and some forms of treason, R v Dudley &Stephens 1884.
The defence is operative for all other crimes. R v Pommell 1995.
The defendant is impelled* to act through some external circumstance or agency to forestall the immediate (or imminent) threat of death or serious injury, rather than being compelled to do so against his will by a human threat. Essentially, it involves justifying a choice between two evils: the evil represented by committing the offence being outweighed by the greater evil which would happen if the offence were not to be committed.
The difference between being compelled - forced to act i.e. duress - and impelled - urged or pushed to act, often through some moral pressure, so that the defendant could not reasonably have been expected to act otherwise.
The defendant was impelled to act in R v martin 1989, to drive while disqualified in response to the threat of his wife to commit suicide.
In R v Willer 1986, the defendant drove his car on to the pavement and into (and back out of) a shopping precinct to escape from a gang of youths bent on attacking himself and his passengers.
The Objective approach
The impulsion to act is viewed objectively. The act must be reasonable and in proportion to the threat of death or serious injury.
Brown J - R v Martin- ‘the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately* in order to avoid a threat of death or serious injury.’
- ‘Proportionately’ means: that the criminal act itself must be weighed against the danger.
Killing Mary to save Jodie had the blessing of the court because it was a necessitous act. Here the act was reasonably necessary and not disproportionate. – Re A 2000
The defendant must be impelled to act by an external source; it cannot come from within him.
R v Rodger and Rose 1998 - the defendants broke out of prison because they were feeling suicidal. The defence of necessity was not available because the source was subjective.
Russell LJ –“If these appeals were to succeed it would involve an extension of the law … and would introduce an entirely subjective element divorced from any extraneous influence.”
The threat must be at least imminent* if not immediate. If not, then there is no defence.
- An Impending threat of death or serious injury.
However when the threat subsides, the defence will cease to operate. For example: the defendant in DPP v Tomkinson 2001 was convicted because she had driven “Further than was necessary”.
In Pommell, the defendant was convicted of possessing a prohibited weapon and ammunition without a firearms certificate. - The point was that he should have handed the gun to the police immediately, rather than keeping it overnight.
The act must be to forestall the threat of death or serious injury*- Southwark LBC v Williams 1971
- injury means physical injury. It does not include pain or psychiatric damage. The authority for this is the recent case R v Quayle 2005 where a number of D’s that were suffering from chronic pain through illnesses. They were convicted under the Misuse of Drugs Act 1971. The common theme of the defences was that the drug was being used merely to alleviate the pain. The appeals failed. (Obviously)
The law on necessity is strict because the courts are keen to limit law breaking.
Lord Denning “Necessity ‘must be carefully circumscribed. Else necessity would open the door to many excuses.”
Brown J – R v Martin - ‘The defence of necessity exists but only in the rarest of circumstances’
Even though the defence is difficult to establish in law, the realities are recognised in practice by exercising discretion in prosecuting or sentencing. For example, the two accused in DUDLEY were sentenced to death but their sentences were later commuted to six months’ imprisonment.
Duress by ThreatsGraham Two-Part Test - Cairns and Bowen Hasan Abdul-Hussain Cole Wright Hudson and Taylor Gill Howe Gotts Valderramma-Vega Fitzpatrick Sharp Shepard
Duress of CircumstancesKitson Willer Conway Martin Pommell
NecessityRe A Dudley and Stephens Quayle Altham Shayler