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1. Duress is a defence for all crimes except murder, attempted murder, and treason. To claim duress, a defendant must show they committed the crime due to threats of death or serious bodily harm from another party, and that a reasonable person would have acted the same way.
2. There are two types of duress: duress by threats, where someone commits a crime due to threats of harm from another, and duress by circumstances, where no direct threats were made but the situation implied threats of death or injury if the crime was not committed.
3. For a duress defence, the threats must be of death or serious bodily harm to the defendant or someone
1. Duress is a defence for all crimes except murder, attempted murder, and treason. To claim duress, a defendant must show they committed the crime due to threats of death or serious bodily harm from another party, and that a reasonable person would have acted the same way.
2. There are two types of duress: duress by threats, where someone commits a crime due to threats of harm from another, and duress by circumstances, where no direct threats were made but the situation implied threats of death or injury if the crime was not committed.
3. For a duress defence, the threats must be of death or serious bodily harm to the defendant or someone
1. Duress is a defence for all crimes except murder, attempted murder, and treason. To claim duress, a defendant must show they committed the crime due to threats of death or serious bodily harm from another party, and that a reasonable person would have acted the same way.
2. There are two types of duress: duress by threats, where someone commits a crime due to threats of harm from another, and duress by circumstances, where no direct threats were made but the situation implied threats of death or injury if the crime was not committed.
3. For a duress defence, the threats must be of death or serious bodily harm to the defendant or someone
INTRODUCTION Duress is a defence to all crimes except murder, attempted murder, and certain forms of treason. The underlying reason for having this defence is a concession to human frailty. Other jurisdictions do not have the exemption of murder because it has to be reasonable, and it will be very rare where murder is reasonable. To establish the defence a defendant must show that: 1. He/She committed the crime because of threats of death or GBH 2. A reasonable person would have acted as the defendant did. There are two forms of duress that are recognised in the law: Duress by threats where someone has committed a crime because another person has threatened to kill or injure someone if they do not commit the crime. Duress by circumstances where no one has specifically told the defendant to commit the crime but the circumstance are such that the defendant believes that unless he commits a crime he or others will suffer death or serious injury. Sometimes it can be difficult to decide whether a case was one of duress by circumstance or duress by threats, but as the rules governing the two defences are identical it does not matter in practice which it is. There is no difference in the legal requirements between them and the distinction is made to help clarify the law. DURESS BY THREAT Hasan [2005] There had to be a threat of death or serious injury. Gotts [1982] By a majority of 3 to 2, the HL decided that duress was not a defence to attempted murder. It is unclear whether the defence applies to incitement or conspiracy to murder. The requirements for duress are quite narrow. Erdemovic This concerned a soldier serving in the Bosnian army. He was told that as part of the firing squad, he would use an automatic weapon to kill people throughout the day. He said he did not want to do this. His officer told him to do it or to get killed. It was controversially decided that it couldnt rely on duress because there was nothing he could do to prevent the crime as there was a firing squad. At the end of the day he could only have been one more corpse on the floor, so why should he have had to lay his life down entirely pointlessly because they were going to kill everyone anyway. Recently this has been accepted.
Defences IV: Duress
Notably this is not the law here, if you are required to kill or attempt murder you cannot rely on duress. R v Howe and others [1987] Point of Law -> Duress is not a defence to murder. Details of Case -> The HL heard a number of conjoined appeals. Howe and Bannister appealed against their convictions for murder. They claimed that they joined in two brutal assaults on young men which culminated in their deaths only because they had been told by an older man with a substantial criminal record that if they did not they would suffer violence. They understood him to mean they would be killed. Burke and Clarkson were convicted of murdering a man known as Button. Burke admitted he shot Button but said he did so only after Clarkson had threatened him with violence and that in any event the gun went off unintentionally. In both cases the key question was whether duress was a defence to murder. Held -> Appeals were dismissed. Duress is not a defence to murder. The key elements of duress are set out by Lane LCJ in Graham, in a statement which was approved by the HL in Howe: 1. Was D, or may he have been, impelled to act as he did because, as a result of what he reasonably believed E had said or done, he had good cause to fear that if he did not so act E would kill him orcause him serious physical injury. 2. If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of D, would not have responded to whatever he reasonably believed E said or did by (committing the crime)
This requirement contains a number of separate elements:
The Threats Must be Causative The defendant must act because of the threats or the circumstances. The defendant must act because of the threats or circumstances and not for other reasons. It would only be in bizarre circumstances that the defendant would commit a crime following threats of death or serious harm, but not because of the threats. The issue is most relevant in cases where the defendant is facing a variety of threats, only some of which are of death or serious harm. If you were going to commit the crime anyway you cant rely on duress. What causes you to commit the crime must be the threats of death or serious injury. Valderrama-Vega [1985] Details of Case -> The defendant was facing three pressures when he committed his offence; he had been threatened with disclosure of his homosexual tendencies, he was under severe financial pressures, and there were threats of death or serious injury. Only the threats of death or serious injury could form the basis of a defence of duress.
Defences IV: Duress
Held -> The CA held that he could still rely on the defence of duress as long as the threats of death or serious injury were for him a substantial reason for committing the crime. They did not have to be the only reason. DPP v Bell (1992) Details of Case -> The defendant was in fear of his life and therefore drove off in a car, even though he had consumed excess alcohol. Held -> It was held that even if the defence had been available for his initial driving away he had to desist from the crime once the threat was no longer potent. By continuing to drive having escaped from the danger area he was from then on not acting because of the threat and so could not rely on the defence of duress. The threats must be one of death or GBH. Duress is available only if the threat was of death or serious harm. A lesser kind of threat will not suffice. So threats to property, reputation or minor injury cannot form the basis of a duress defence, even where the defendant has committed a very minor crime. There is some doubt whether a threat to cause a serious physical injury would be sufficient: Burstow The HL explained that the phrase GBH in the Offences Against the Person Act 1861 included serious psychological illnesses. This might be used to argue that a threat to cause a serious psychological injury could form the basis for a duress defence. Baker and Wilkins (1997) The Burstow decision was rejected. The CA emphasised that only a threat of death or physical injury would suffice. Hasan To found a plea of duress the threat must be to cause death or serious injury. There are an increasing number of claims of duress these days, and so the courts are sceptical about allowing acquittals on this basis. They try to keep the law as narrow as they can Quayle et al, [2005] Details of Case -> Quayle and two others were suffering various illnesses which caused them severe pain. They were arrested after it was found that they were growing cannabis for personal use. They were charged with possession of cannabis contrary to the Misuse of Drugs Act 1971. The defendants raised the defence of necessity. This was based on the argument that the use of cannabis was necessary to avoid serious injury and pain. Their defence was not left to the jury by the trial judge and an appeal was made to the CA. Held -> Appeal dismissed. It is not good enough if the threat which they were attempting to argue is of pain.
Defences IV: Duress
The threat can be of death or serious harm to anyone At one time it was thought that for duress to provide a defence the threat must be directed towards the defendant or his close family. It is now clear that the defence can be available if the defendant fears that anyone for whom the defendant reasonably regards himself responsible. This might include a close friend or a child he was looking after. Of course the identity of the person who is in danger from the threat will be relevant when considering whether a reasonable person would give in to the threat. The threat must not come from the defendant himself Rodger and Rose (1998) Details of Case -> The defendants were charged with offences connected with escaping from prison. They sought to rely on the defence of duress. They argued that they had become so depressed because of the conditions in prison that they would have committed suicide had they not escaped. They were therefore facing a threat of death. Held -> The CA held that duress was not available because the threat of death did not come from a source extraneous from the defendants. The defendant can rely on what he reasonably believed to be a threat What if the defendant had thought that he was facing a threat, but in fact he was not? Graham [1982] Point of Law -> The defendant must have reasonable grounds to believe that the threat had been made. Details of Case -> G lived with wife and with his lover; a man called King. G suffered from an anxiety disorder and took valium for this. He said valium made him more susceptible to threats than other people. K was known for violence and had been violent before to both G and his wife. One day G and K took valium and drank. K suggested to G that he kill his wife. G thought this was a threat. G agreed and went home and strangled her with electrical flex. The CA looked at this and looked at question of whether they took valium mattered. Lord Lane 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 reasonablenessThe law requires people to have the self-control reasonably to be expected of an ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situationThe correct approach on the facts of this case would have been as follows: (1) was he defendant, or may he have been, impelled to act as he id because, as a result 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 him or (if this is to be added) cause him serious physical injury?. (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing? The fact that a defendants will to rest has been eroded by the voluntary consumption of drink or drugs is not relevant to this first test. Cairns (1999)
Defences IV: Duress
It was confirmed that if the defendant reasonably believed there was a threat of death or GBH, the defence may be available, even if there is in fact no such threat. R v Hassan (2005) The defence of duress is only available if the defendant both genuinely and reasonably believes the threat to have been made. The reasonable person must have responded to the threat in the way the defendant did The jury must decide that the reasonable person must have responded to the threat as the defendant did. The jury, in deciding how a reasonable person would respond to the threat, are likely to consider how severe the threat was and how grave the required crime. In other words the jury are likely to consider whether the defendant responded in a way which was proportionate to the threat. However, the jury will appreciate the terror felt by a person facing a threat of death or serious injury. The defendant is not expected to behave in an especially heroic way, but simply in a reasonable way. What characteristics of the defendant should be attributed to the reasonable person? R v Bowen (1996) Details of Case -> Bowen was convicted of obtaining services by deception. He accepted the key facts alleged by the prosecution but claimed that he had acted as he did only because two men had accosted him in a pub and threatened that he and his family would be petrol-bombed if he did not assist in the plan. He was also told that his family would be attacked if he sought the assistance of the police. There was some evidence that he had an IQ of 68 (which would be in the lowest 2% of the population) and unusually suggestible. The question was whether the jury should have been directed to consider the response to the threat of a reasonable person with an IQ of 68. Held ->The appeal was dismissed. The low IQ of the defendant could not be said to be the reason why he performed the act. Which characteristics can be taken into account? Bowen provides a reasonably clear description of how a trial judge should decide whether a characteristic can be ascribed to the reasonable person. It must be shown: (i) The characteristic provides a reason for failing to live up to the standards of the reasonable person. Hence, low IQ was not relevant, but post traumatic stress disorder may be. There is no reason why those with low IQ should be less brave than those with higher IQ. Contract a person suffering with post-traumatic stress disorder who does have a good reason why they cannot be expected to be as brave as an ordinary person. (ii)The characteristic must not be self-induced (e.g. intoxication). One issue yet to be resolved is whether Smith (Morgan) (2000) a case on
Defences IV: Duress
provocation, is to be applied in relation to duress. If so, this would mean that the jury could take into account any characteristic that a jury believed to be relevant. What purposes are characteristics relevant? Potentially relevant characteristics are pregnancy and physical disability. But surely these characteristics do not affect the level of bravery that can be demonstrated? What this may indicate is that characteristics may be ascribed to the reasonable person in duress for 3 different reasons: (i) To affect the level of firmness expected (ii)To affect the ability of the defendant to escape from the threat. E.g. physical disability (iii) To affect the gravity of the threat.(e.g. pregnancy) Although the CA did not say so explicitly it appears that characteristics may be relevant in any of these three ways. In Bowen, the CA, perhaps, did not give as much consideration as it might have to the question whether the defendants low IQ led him to think the threat was more serious than it was or to fail to see a way of escaping from the threat. The defendant must take any reasonable opportunity to escape from the threat The defendant must have taken any opportunity to escape from the threat that a reasonable person would have taken, for example, by seeking police protection. Heath (2000) Details of Case -> The defendant was threatened with violence unless he helped transport drugs in a few days time. Held -> He was told that he could not rely on duress as a defence because he could have escaped from the threat by seeking assistance from the police or moving to relatives in Scotland. Imminence or Immediacy? The threat must be of harm in the near future. There are some old cases which imply that imminence is enough. However, the law has since tightened. Hudson and Taylor [1971] H and T were witnesses to a crime and were being tried for perjury and lying to the courts. They said they had been threatened. The people they had witnessed said if you did not lie about who they saw they would be hurt. When they were giving evidence, one of the members of the gang was sitting in the court staring at them. The threat could not be carried out in courtroom so could not be described as immediate death or serious injury but the CA said imminence was sufficient. 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
Defences IV: Duress
the sense that it is effective to neutralise the will of the accused and at that timeIn the present case the threatswere likely to be no less compelling because their execution could not be effected in the courtroom, if they could be carried out in the streets of Salford the same night. Abdul Hussein [1999] Details of Case ->The appellants were Shiite Muslims who had offended Sadam Hussains Iraqi regime. They had escaped to Sudan, but had overstayed their visas and were threatened with being returned to Iraq. Members of their families in Iraq had been killed or tortured. They hijacked an aeroplane and eventually arrived in England. They were charged with and convicted of hijacking. One issue on appeal was whether duress was only available if the appellants were facing an imminent threat. Held -> The CA stressed that the threat of death or serious injury had to be imminent. This did not mean that the harm had to be immediate, but it did have to be something due in the very near future. Hasan, (Lord Bingham) It shouldbe made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged. The defendant must have good cause to believe that the threat could be carried out. The Graham direction makes it clear that the defendant must have good cause to believe that the threat could be carried out. The Threats Must not have Been Courted The defendant must not have put himself in a position in which he could have been threatened this way. If defendants put themselves into a position where the threat could be made against them then the defence of duress is not available. So the defence is not available if the defendant associates with criminals in circumstances in which he knows or ought to know that he could become subject to compulsion to commit a crime. E.g. the defence of duress could not give an excuse to people who join gangs knowing the sort of criminal activities that take place. Hasan Details of Case -> The defendant Hasan, sought to rely on a defence of duress in response to a charge of burglary. Hasan was the driver and minder of E. E ran
Defences IV: Duress
an escort agency but then E took up with somebody else P. P was known as a violent drug dealer. P persuaded E to sack Hasan. Hasan kept in contact with P and continued to speak and have contact. It was alleged that he had entered the victims house, claiming that the victim had telephoned for a prostitute. He produced a knife and took 4000 from a safe. Hasan claimed that he had only done this in response to threats of violence, from P whom he worked and who had a reputation as a violent man. One issue considered by the HL concerned the admissibility of various statements by the defendants. The issue of concern to substantive criminal law was the direction of the judge that the defendant could not rely on threats because he had associated with the threatener and therefore put himself in a position in which he knew that he was likely to be subjected to threats. The defendant was convicted and appealed. The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows of ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress You dont need to know that you would be compelled to commit crimes; just need to know or reasonably would know that you might be threatened Baroness Hail commentated that this was too harsh of a criteria. She was worried about the rights of women who stay in violent relationships. Internal duress cannot be relied upon. R v Quayle (2005) Details of Case -> Quayle and two others were suffering various illnesses which caused them severe pain. They were arrested after it was found that they were growing cannabis for personal use. They were charged with possession of cannabis contrary to the Misuse of Drugs Act 1971. The defendants raised the defence of necessity. This was based on the argument that the use of cannabis was necessary to avoid serious injury and pain. Their defence was not left to the jury by the trial judge and an appeal was made to the CA. Held -> Appeal dismissed. Defendants cannot rely on threats that come from within themselves. Threat related to the commission of a specific crime Cole [1994] A man was threatened with violence if he did not repay some debts. To get the money to pay off the debt he robbed building societies. He attempted to bring the defence of duress. Although he was threatened, he did not have to pay the money back in an illegal way.
DURESS OF CIRCUMSTANCES
Defences IV: Duress
In some cases where the defendant does the lesser of two evils, he will be able to rely on the defence of necessity. Duress of circumstance provides a defence where the defendant reasonably believes that the circumstances are such that unless he commits a crime he or another will suffer death or serious injury and that a reasonable person in the same situations would have committed the crime. Being faced with the threat of death which the defendant avoids by driving through a red light would fall under the defence of duress of circumstances. It would also be said to be the lesser of two evils. However, duress of circumstances is in some sense narrower and in some sense wider than necessity. Duress of circumstance is narrower in that duress of circumstance is not available in order to avoid a threat less than death or GBH, although necessity if recognised may provide a defence if the crime committed involved less harm than that threatened. Duress of circumstances is wider than a necessity defence would be, in that it covers the situation where the defendant reasonably believed there to be a threat of death or serious injury even if there was in fact no such threat. A necessity defence would not cover such a situation. Further, if the defendant was threatened with GBH unless he caused GBH, although the two kinds of harm may be the same and so he or she may not be able to rely on necessity, he may be able to rely on duress of circumstances and argue that a reasonable person would have given in to that threat. R v Conway [1988] C was sitting in his car with T. A few weeks before T had been attacked. Two men walked up to Cs car. C thought they were going to attack T, and so recklessly drove away. It just happened that they were police. C was charged with reckless driving. He argued the defence of duress of circumstance or necessity. The test of duress of circumstance is subjective, and has the same requirements as duress of threats. The requirement had to relate to death or serious injury. A reasonable person would have done the same thing. Martin [1989] Details of Case -> Ms son was late for work. If he was late for work again it was likely he was going to be fired. M was disqualified from driving. His wife said to him you have to drive your son to work. He said he couldnt as he was disqualified. She said if you dont I will kill myself. Held -> It was accepted in CA that there was a duress of circumstance. English law does in extreme circumstances recognise the defence of necessity. English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accuseds will from the wrongful threats or violence of another. Equally however, it can arise from objective angers threatening the accused or others. Arising thus it is conveniently called duress of circumstances. They then determined that the questions to be asked were the analogues to those asked in Graham. Graham [1982]
Defences IV: Duress
Lord Lane 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 reasonablenessThe law requires people to have the self-control reasonably to be expected of an ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situationThe correct approach on the facts of this case would have been as follows: (1) was he defendant, or may he have been, impelled to act as he id because, as a result 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 him or (if this is to be added) cause him serious physical injury?. (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing? The fact that a defendants will to rest has been eroded by the voluntary consumption of drink or drugs is not relevant to this first test. Pommell [1995] All the early cases of duress of circumstances related to driving, but in Pummel the CA said duress of circumstance is applicable to all offences which duress of threats is applicable. Details of Case -> P was found early in the morning with a large gun with him in bed. The police asked why there was an unlicensed gun in bed. He said a funny thing happened last night. He had bumped into a man with this gun. He said he was going to kill someone. Subsequently P said he took the gun off him to give to his brother to hand in the next morning. Although he did not have a license, he felt it was necessary to take the gun off him. Held -> CA accepted that he could rely on the duress of circumstances.. Commentary -> Interestingly, the threat was no longer operating. Once the gun had been taken off the man, there was no further threat. There was reasonable time afterwards to take the gun to the police. Pommel case number 2 -> Evidence case relating to whether or not you could omit evidence where someone relied on a plea with regards to evidence Details of Case -> Pommel was found in bed with a gun again. Held -> CA said they could not give evidence of before