Lecture notes
Duress in Criminal Law
- Module
- Criminal Law
- Institution
- University Of The West Of England
Duress in Criminal Law
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What is Duress: Acknowledged in case law
AG v Whelan [1934] IR 518
‘Threats of immediate death or serious personal violence so great as to
overbear the ordinary powers of human resistance should be accepted as
justification of acts which would otherwise be criminal’
Hasan [2005] UKHL 22
‘Duress in now properly to be regarded as a defence which, if established,
excuses what would otherwise be a criminal offence’
DPP v Lynch [1975] AC 653
‘Duress is something which is superimposed on the other elements of the
offence so as to prevent the law from treating what she/he has done as a
crime’
Burden of Proof:
Hasan [2005] UKHL 22
An evidential burden
‘Where the evidence in the proceedings is sufficient to raise an issue of
duress, the burden is on the prosecution to establish to the criminal standard
that the defendant did not commit the crime which he is charged under
duress’
Bloomfield [2007] EWCA Crim 1873
Prosecutorial burden
Prosecution has to prove guilty but has to provide evidence of duress
Law Commission
‘The defence of duress is peculiarly difficult for the prosecution to investigate
and disprove beyond all reasonable doubt’
2 Types of Duress:
Duress by threats
Duress by circumstance
Duress by Threats -
Graham (1982) 74 Cr App R 235:
As the leading authority for a long time
Was a homosexual man living with his wife and gay lover called King
King was a jealous person and came up with the plan to get rid of the wife
Graham was involved as he knew and didn’t stop it
He pleaded not guilty, with the defence of duress because he feared King
The question was, was the defendant impelled to act as he did because, as a result
of what he reasonably believed King had said or done, he had good cause to fear
that if he did not so act King would kill or cause him serious physical injury?
If so, have the prosecution made the jury sure that a sober person of reasonable
firmness, sharing the same characteristics of the defendant, would not have
, responded to whatever he reasonably believed King said or did by taking part in the
killing
Subjective test as to whether he felt impelled to act in a criminal way because of fear
of death of serious injury if he didn’t
Objective test as to whether a sober person of reasonable firmness with the same
characteristics would have reacted the same way
On appeal his case was rejected and he was found guilty
Hasan [2005] UKHL 2008:
New leading authority set out the following
1. There must have been a threat of death or serious injury
2. That threat must have been made to D or his immediate family, or someone close to
him, or someone for whom D would reasonably regard himself as being responsible
3. D’s perception of the threat and his conduct in response are to be assessed
objectively, his belief that he is under such threat must be reasonable and his
decision to commit the crime in response must be reasonable
4. The conduct sought to be excused must have directly linked to the threat D relies on
5. There's must have been no evasive action D could have reasonably taken
6. D cannot rely on threats to which he voluntarily laid himself open to
7. The defence is unavailable to murder, attempted murder, or treason
In this case, Hasan was a driver who worked for a women running a prostitution ring
This owner of the ring had a violent drug dealing boyfriend
Hasan had delivered some girls to a house and was overheard saying he knew there
was a safe with money in in the house
The drug dealing boyfriend and someone else took Hasan to the house and said that
he had to go rob the house, if he didn’t then he feared they would shoot him
The people had bragged about murdering 3 people before
He claimed the defence of duress when he was caught
He was still found guilty as he voluntarily laid himself open to it by being involved with
those people
There was case law on most of this but Hasan consolidated it (Lord Bingham)
1. There Must be a Threat of Death of Serious Injury:
Singh [1973] 1 WLR 1600
Threats of blackmail aren’t enough
Baker and Wilkins [1997] Crim L R 497
Psychiatric injury isn’t enough
Controversial as Ireland and Burstow states psychiatric injury can be ABH
Aikens [2003] EWCA Crim 1573
Punch to face was not sufficiently serious
Van Dao [2012] Crim 1717
Threat of false imprisonment accompanied with threat of harm not enough
Was in a cannabis factory, he had his keys and phone so was not imprisoned
Medical Marijuana:
Brown [2003] EWCA Crim 2637
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