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Duress
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lecture notes on the defence of duress of circumstance
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Week 18 – Defences – DuressPre-recorded lecture 1 on Duress and duress of circumstances
Duress overview
- D compelled to act by pressure of wrongful threats
- Complete defences to all crime except murder (R v Howe 1987), attempted murder (R v
Gotts 1992) and some forms of treason (offences against the state)
- Excusatory defences – applies where Ds wrongdoing or fault should be excused as they were
overborne by threats of death or physical violence
- Duress recognises under serious threats the defendant will face a dilemma – commit crime
or duffer death or serious injury
- Harm doesn’t have to be directed at the D personally – may be a threat against
family/others who they owe responsibility
- Defence raise, CPS disapprove (burden of proof)
- Law commission reform
Lord Wilberforce defines Duress in DPP for N.I v Lynch (1975) AC 653
‘Duress is something which is superimposed on the other elements of the offence as to prevent the
law from treating what s/he has done a crime’
Elements of duress – case of R v Hasan, HL, 2005 para 21
1. Duress does not afford a defence to charges of murder
2. The threat must be to cause death or serious injury
3. The threat must be directed against the defendant, his immediate family or someone close
to him
4. The relevant tests are objective, with reference to the reasonableness of the defendants’
perceptions and conduct
5. The criminal conduct must have been directly caused by the threats
6. (immediate) duress is only available if there was not evasive action D could reasonably have
been expected to take
7. D may not rely on duress to which he has voluntarily laid himself open (gangs etc)
Elements applied – these 7 requirements need to be taken in turn
1st requirement
- Law commission 2006 recommended that the law should change, and that murder should
allow the defence of duress
2nd requirement
- Serious psychological injury is insufficient – this comes from the case of R v Baker and
Williams (1997) must be serious physical injury or death
- Threat of false imprisonment without serious injury is insufficient – this is from the case of R
v Van Doo (2012) – the duress was unrealistic, no threat of serious harm
3rd requirement
- The threat must be directed against
o The defendant
, o A member of his immediate family
o A person for whose safety he would reasonably regard himself as responsible (case
of Wright CA 2000 and approved in Hasan)
o Persons for whom the situation makes him responsible because he is placed in a
position where he is required to make a choice whether to act which it is said will
avoid them being injured (Shayler HL 2001)
4th requirement
- A sober person, of reasonable firmness, sharing D’s characteristics, responded in the same
way?
- Objective approach confirmed in R v Hassan (2005)
- Purpose avoids frivolous/false claims
- Strict interpretation, few characteristics permitted
- Are physical and mental characteristics allowed?
Case of Graham (1982)
- Was the accused impelled to act as he did because of what he reasonably believed to be the
situation had a good cause to fear that otherwise death of serious injury would result
- If so, would a sober person of reasonable firmness sharing the characteristics of the accused,
have responded to that situation by acting as the accused acted
- Threat must be one that would overcome the will of an ordinary person of the age and sex
of D – relevant characteristics
Case of Bowen (1996)
- D, low intelligence, convicted of deception offences, D claimed that 2 men threatened to
petrol bomb his house unless he obtained the goods
- Trial, evidence found D abnormally vulnerable and suggestive
- Characteristics withheld from the jury, D convicted and appealed
- “The Defendant may be in a category of persons who the jury may think less able to resist
pressure than people not within that category. Obvious examples are age, where a young
person may well not be so robust as a mature one; possibly sex, though many women would
doubtless consider they had as much moral courage to resist pressure as men; pregnancy,
where there is added fear for the unborn child, serious physical disability, which may inhibit
self-protection, recognised mental illness or psychiatric condition such as post-traumatic
stress disorder …
- Psychiatric evidence may be admissible to show that the accused is suffering from some
mental illness, mental impairment or recognised psychiatric condition … it is not admissible
simply to show that in the doctor’s opinion an accused, who is not suffering from such illness
or condition, is especially timid, suggestible or vulnerable to pressure and threats.”
- Relevant characteristics
o Age
o Possibly sex
o Pregnancy
o Serious physical disability
- Fact that defendant has a low IQ is not enough
- Mental illness may be included such as PTSD
- Characteristics due to self-inflicted abuse such as alcohol not relevant
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