Duress
Establishing Duress
Classic duress is complete defence with four elements: R v Hasan [2005] 2 WLR 709
- The defendant was ordered (duress by threats) or effectively required (duress by circumstance) to commit a specific crime;
- The order was accompanied by an immediate threat;
- That threat was a threat to kill or seriously harm the defendant or someone for whom the defendant was responsible; and
- The threat was so great that it would overbear normal powers of human resistance.
The Nature of the Threat
The threat can be made by another person, or it can result from the circumstances that the defendant finds themselves in: R v Conway [1989] QB 290. It does not need to be directed to the defendant: R v Brandford [2016] EWCA Crim 1794. However, the threat must emanate from something external to the defendant: R v Rodger and Rose [1998] 1 Cr App R 143; R v Quayle [2005] EWCA Crim 1415.
So long as the defendant’s belief that they were threatened is reasonable, there is no need for the threat to be real: R v Safi [2003] EWCA Crim 1809.
A Specific Crime
Duress is not available where the person threatening the defendant merely demands money, and the defendant commits the crime to obtain that money: R v Cole [1994] Crim LR 582.
Immediacy
‘Immediate’ is loosely defined – the defendant must have no opportunity to delay and so must make the decision to commit the crime there and then: R v Hudson & Taylor [1971] 2 QB 202. This will not be met if the defendant could reasonably and effectively gotten protection have gone to the police or taken some other evasive action: R v Hasan [2005] 2 WLR 709.
Responsibility
The class of people the defendant is considered responsible for includes family members: R v Martin [1989] 88 Cr App R 343. The circumstances may also make a defendant reasonably feel responsible for another, such as passengers in the defendant’s car: R v Conway [1989] QB 290.
Overbearing Human Resistance
A three stage test is applied to determining whether the threat would overbear normal powers of human resistance: R v Graham [1982] 1 WLR 294
- Did the defendant have a reasonable belief in the circumstances constituting the threat?
- Did that belief lead them to have good reason to fear death or serious injury if they did not comply?
- Would a sober and reasonable person with the defendant’s characteristics but ordinary firmness have acted as the defendant did?
The only characteristics of the defendant that the reasonable person is imbued with are their age, gender, pregnancy status, and any serious physical disabilities or recognised mental illness they have: R v Bowen [1997] 1 WLR 372. Self-induced conditions such as drug addition are not to be taken into account: R v Flatt [1996] Crim LR 576.
Additional threats to inflict lesser consequences can be taken into account when determining how the reasonable person would respond: R v Valderamma-Vega [1985] Crim LR 220.
This test will not be met if the defendant had a reasonable opportunity to inform the police (if this would help) or take other steps to evade the threat: R v Hasan [2005] 2 WLR 709.
Bars to the Defence
Excluding Duress
In some cases, the defence of duress will not exonerate the defendant even if all its requirements are met. These cases are:
Murder and Treason
Duress is not a defence to murder and some forms of treason, as well as attempts to commit those offences or being an accessory to those defences: R v Gotts [1992] 2 AC 412.
Joining Certain Organisations
Voluntarily joining a violent criminal gang, conspiracy or terrorist organisation will bar the availability of duress as a result of any threats made by the gang or organisation: R v Sharp [1987] 85 Cr App R 207.
Indebted Drug Addicts
Where a defendant is threatened as a result of being indebted to a drug dealer, they are taken to have induced the threat and so the defence is unavailable: R v Flatt [1996] Crim LR 576.
