- Duress by threat: - where def feels forced to commit a crime due to the pressure which comes from threats of imminent personal injury or death, made by another person, about Def or someone they are responsible for.
- Duress of circumstances: - where def feels forced to commit a crime due to the pressure of the circumstances they are in, which cause them to fear imminent death or serious personal injury to self or someone they feel responsible for.
- Duress by threat long existed at Common Law
- Duress of circs only recognised by courts in recent yrs (1980’s):- fills lacuna/hole left by courts not liking to use necessity (unwillingness of courts to recognise it in criminal cases)
- Excusatory defence. Concession to human frailty. Don’t deserve punishment as not truly criminal.
- Courts restricted availability of defence (created a number of requirements/limitations over last 30 yrs as there was a fear of violence from criminal gangs and terrorist groups (can be seen from case law). They wanted the defence to be an excuse for truly deserving but not a get out of jail free card for criminals/members of criminal gangs.
- Type of threat
- Who is the threat of death or serious PI towards?
- Timing of the threat
- Escape Opportunities/time to report to police/seek police protection
- Not available to those who are members of criminal gangs (+ associate with criminals)
Type of threat
- Must be threat of death or serious personal injury
- Courts can consider cumulative threats (reveal sexual impropriety etc) but death or PI has to be present too- Valderrama Vega .
- Not threats to property ( DPP for NI v Lynch)
- Unclear about threats to cause psychological injury (Baker and Wilkins).
Who is the threat of death or serious PI towards?
- Used to have to be D or close family (Ortiz)
- Now anyone whom D feels responsible for (Wright).
- Does not include the public at
- large (Shayler)
Timing of the threat
- Used to be thought that threat had to be immediate (Hudson & Taylor 1971).
- Later cases said that imminent (playing on/operative on D’s mind would be ok. Cases which made this rule are Abdul Hussain and Safi (hijacking cases).
- Recent case law seems to tighten the law up even further.Hasan (2005) seems to say that it might be more immediate again.
Escape Opportunities/time to report to police/seek police protection
- Gill (1963) told us that defence not available if D has any reasonable time to report matter to police/escape.
- Hudson Taylor was quite generous to defs as it said that they could have defence if felt police could not protect them.
- Hasan (2005) tightens up. No defence if any opportunity to report to police.
- Pommell said small delay in reporting to police is ok.
Not available to those who are members of criminal gangs (+ associate with criminals)
- Sharp (CA) laid down some guidelines about
- when defence would not be available (not if know gang likely to be violent, active member etc).
- Shepherd (shoplifter) allowed defence as no evidence of gang being violent when joined.
- Hasan (2005) tightened up law and said defence not available to anyone who knowingly associates with criminals (AO2-bit extreme/harsh).
- Courts not given defence to anyone who is threatened by their drug dealer (Baker and Ali/Heath and Harmer)
Offenses where duress is not available.
Neither form of duress is available to the crimes of murder or attempted murder for either the principal (main)or secondary offenders (accomplices-bag handler/driver etc).
Offenses where duress is not available Cases:
- DPP for NI v Lynch- HL said that defence not available for principal offenders to a murder (secondary parties could get it).
- In R v Howe (1987) HL used 1966 PS to overrule earlier decision and make defence unavailable to secondary parties to murder too. In this case HL said (obiter) that didn’t think it would be available for attempted murder too.
- R v Gotts (1991/2) CA persuaded by obiter of HL and decided that defence of duress not available for attempted murder. Attracted much comment and criticism.
- Recent case of R v Wilson – very young boy who was forced to participate in murder of neighbour due to threats from Dad- denied defence. Fair?
- In an effort to ensure that only the truly deserving could benefit from the defences, the courts developed a 2 stage test in 1982 in the case of R v Graham
- Subjective and objective parts and both must be satisfied.
- Subjective: - did the def feel threatened (Courts accept mistakes about the threat- Cairns : man on bonnet and friends running over).
- Objective: would a sober person of reasonable firmness have reacted in same way.(drink not considered).
- Courts had to decide what characteristics to take into account. Bowen said that age, sex, pregnancy, physical disability and recognised mental illness but not IQ
The development of duress of circumastance from necessity timeline
- Kitson 1955
- Buckoke 1971
- Williams 1971
- Willer (1986)
- Conway (1988)
- Martin (1989)
- Pommell (1995)
- Shayler (2001)
- Passenger moves to drivers seat to stop car -avoiding accident but charged with drink driving- cant have defence of necessity-
- Big lacuna- unfair
Denning said defence of necessity not available to emergency vehicles which break traffic laws. Said “Just don’t prosecute”. Avoiding rather than dealing with question of “necessity”.
- Homeless family broke into and entered property - Squatted.
- Raised necessity as a defence- Denning said no!! “necessity will open a door which no man can shut” (floodgates argument)
- Still big hole in law.
- Man committed driving offence when he thought he needed to escape.
- Court referred to force of circs- first time we seem to have a defence of duress of circs.
- Driving offence again...thought be attacked by youths. Passenger had recently been subjected to threats.
- First time “duress of circs used”. Gave it it’s name.
- Driving offence- used again.
- Wife threatened to kill self unless Husband who was disqualified drove her son to work. Told us that the Graham 2 stage test used for duress by threat also applied to duress of circumstances.
- Man in possession of gun he had felt under pressure to to keep to avoid more trouble- first time defence available to crimes other than driving offences...
- Available to all crimes except M, attempted M and some forms of treason
- The def was an MI5 agent. He wrote a book criticising the secret service. In doing so he broke the official secrets act (crim offence). He raised the defence of duress of circs. He had felt pressured to break the secrets act in order to safeguard or protect the general public.
- Held that duress is not available if the threat is to the public at large.
- The CA actually said that duress of circs and necessity were the same thing. THEY ARE NOT!!!
- Many people including the Law Commission in its 2005 report... think that the defence of duress should be available to all crimes including murder and attempted murder .
- However the Law Commission appears to be focussing on the rights of the defendant and this change could ignore the rights of the innocent victim and cause distress to their family.
- The Law Commission has recommended a shift in the burden of proof from the defendant to the prosecution.
- Some have suggested that it should be a partial defence to M.
- Some say that duress should be abolished completely as a defences and consider it as a mitigating factor when sentencing.
Valderrama Vega (1985)
- D caught smuggling cocaine from Columbia.
- Claimed did so under duress as drug barons had threatened to kill him & family + expose his homosexuality & money problems if didn’t do it.
- Held: That for duress there has to be threats of death or serious PI. Other threats alone (without death or serious PI) will not be sufficient for the defence.
- The court can consider other threats (cumulative effect) provided death or serious PI there too.
- D caught smuggling drugs.
- Said forced to do so by others who had threatened to kill boyfriend
- Previously thought that only threats toward D or close family would suffice. This case tells us that threats about anyone whom D feels responsible for be sufficient for the defence
Hudson Taylor (1971)
- Defs= 2 16yrs olds witness crime and are to give evidence in court.
- Someone gets to them (threatens to cut them up) and they lie in court.
- Held the timing of the threat; it must be immediate.
- They probably wouldn’t get the defence today
Abdul Hussain (1999)
- Iraqi defs who hijacked a plane and flew it to
- England due to fear of death from the regime
- Held: they were given the defence of duress of circs. The threat had to be “imminent” rather than immediate.
- Defence denied. D must take any reasonable opportunity to report the matter
- As a result of threats of death/PI the D stole his employers lorry 3 days after threats made.
- D joined criminal gang and forced to commit crime
- CA gave guidance about when the defence will be available to gang members,
- They cannot have the defence if voluntarily joined, new of its propensity to violence, was an active member at time committed crime etc.
- D joined gang of shoplifters who had no propensity for violence. Changed and he was threatened with death/PI if he did not commit crime
- Allowed defence of duress
- D was a driver for a prostitute whose boyfriend threatened him with violence unless did a burglary. D was caught and he raised defence of duress.
- HL: Refused to allow def of duress (seriously tightened up on the availability of the defence).
- The defence not available to anyone who associated with criminals and it was reasonable to foresee that he might be subjected to threats and forced to commit crimes.
- (* also said that threat probably now has to immediate again and that no delay in reporting the matter is acceptable)
- D owed money and had threats of death and serious PI made unless he got it.
- D went out and committed robbery to get the money
- Defence of duress denied because the person making the threat had just said “get the money” .
- The crime must be specified in the threat for the defence of duress. This requirement applies only to duress of threat.
- D lived in a threesome with his wife and male lover, Mr King (K).
- One night after drinking lots K threatened to hurt D if he did not tie flex around wife’s neck and pull. Killed her.
- Defence was not available because the CA did not feel threats were serious enough.
- CA laid down a 2 stage test to be applied (again limiting availability of the defence)
- Subjective part: did the D feel compelled to act as they did (commit the crime) because of threats of injury and death etc-(Mistaken belief about threat will be ok- Case of Cairns (man on bonnet) tells us this.
- +Objective part: Would a sober person, of reasonable firmness, sharing same characteristics of D have acted in the same way.
- D argued that his low IQ made him more susceptible to threats
- CA wouldn’t give him the defence. Said IQ is not taken into account (one of the defendant’s characteristics given to the reasonable person in the objective part of the test).
- CA gave guidance on the characteristics of the def which could be considered: age, sex/gender/pregnancy, physical disability, recognised medical condition
- D took part in the torture and killing of 2 victims.
- He was the lookout for one (secondary participant) but played a more active role in the killing of the other. He tried to rely on duress .
- HL held that the defence of duress was not available for either crime. It is not available to primary or secondary parties to murder. This decision overruled the earlier decision of DPP for Northern Ireland v Lynch where the HL had said duress was available to secondary participants in a murder.
- In Howe the HL used the 1966 PS to overrule its earlier decision in Lynch. The HL also said obiter dicta that it felt that the defence of duress would also not be available in attempted murder
- Confirmed that the Graham test should be applied in cases of duress by threat
- D attempted to kill mother because his dad had aid he would kill D if he did not. Failed.
- CA followed the persuasive precedent made by the HL in Howe. Duress is not available to attempted murder.
- AO2- creates anomalous situation as it is available to S18 wounding where injuries could be worse.