DEFENCES -- DURESS
DEFENCES DURESS
CASES
R v Graham (1982) - the defendant was a homosexual man living with his wife and his lover, King, who had violent tendencies.
Threatened by King, the defendant strangled his wife with the electrical flex. The defence duress failed because the court did not
believe any threat existed.
R v Hasan (2005) - here the defendant had associations with a drug dealer. The dealer told the defendant to burgle a house and
steal money, and if he did not comply, the dealer told the defendant that his family would be harmed. He could not rely on the
defence because he voluntarily associated himself with these criminal “gangs”.
R v Willer (1986) the defendant was charged with reckless driving, but claimed he was forced to drive in such a fashion because
he was being chased by a gang of around 30 members.
R v Valderrama-Vega (1985) - the defendant took part in the illegal importation of drugs from Colombia. He sad that he was
acting as part of a Mafia type of group who had threatened to kill him and expose his homosexuality.
KEY TERMS
Duress: where a person is forced to commit a crime because they were under threat of death or personal injury by another. It is the
classic “do this or else” situation and can be brought about by a direct threat of circumstances. It often applies to situations
concerning gangs or other organised crime agencies. Duress is a complete defence for most crimes.
Duress by threats: this is where a person is forced to commit a crime under a threat or death or personal injury.
Duress of circumstances - this is where a person is forced to commit a crime because circumstances dictated that the crime needed
to be committed.
MAIN POINTS / SUMMARY
• Duress is not available for murder: (R v Howe) or attempted murder (R v Gotts)
• DURESS BY THREATS - there is a t wo - part test which needs to be passed in order to rely on this defence. The test seeks to
address the balance bet ween the seriousness of the threat and the seriousness of the resulting criminal behaviour. R v Graham
(1982) put into place the 2 - part test but restrictions have been put into place by the more recent case of R v Hasan (2005).
Part 1 - SUBJECTIVE TEST
Was the defendant forced to act as he did because he feared that if he did not then death or personal injury would result either to
himself or to someone whom the defendant reasonably regarded himself as responsible? Were the threats sufficiently serious? Only
threats of death or personal injury will be regarded as sufficiently serious to constitute duress.
CASES - R v Valderrama-Vega, R v Hasan (2005)
Are the threats unavoidable? This part of the test allows for the defendant to have escaped or reported the threat to the police.
The defence will only succeed where the threat is unavoidable and imminent. This was confirmed in R v Hasan (2005). This case has
also provided guidance and stipulated that the defence of duress is not available if the accused’s voluntary association in criminal
activity.
Part 2 - OBJECTIVE TEST
Would a sober person of reasonable firmness, sharing the defendant’s characteristics, have reacted to that situation by behaving as
the defendant did?
Personal characteristics can only be regarded where they are relevant to the defendant’s interpretation of the threat.
The leading case of of Browen (1996) stipulated when personal characteristics can be taken into account when deciding the acton’s
of the reasonable man:
• Age and Sex - R v Browen (1996)
• Pregnancy
• Serious physical mental illness - R v Martin (2000)
DURESS OF CIRCUMSTANCES
The rules here are similar to that of duress by threats, but rather than pressure being put on the defendant by another person, the
circumstances are such that death or personal injury will ensue if a crime is not committed. The majority of cases in this category
are associated with road traffic offences, whereby someone is forced to drive in an illegal manner because of circumstances.
CASES - R v Willer (1986)
It is not only traffic offences which have been held to amount duress of circumstances, in R v Pommell (1985) the court ruled that
the defence was available to all offences except of murder, manslaughter and treason.
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