Criminal Law: Duress

Duress

Establishing Duress

Classic duress is complete defence with four elements: R v Hasan [2005] 2 WLR 709

  1. The defendant was ordered (duress by threats) or effectively required (duress by circumstance) to commit a specific crime;
  2. The order was accompanied by an immediate threat;
  3. That threat was a threat to kill or seriously harm the defendant or someone for whom the defendant was responsible; and
  4. 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 415.

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
criminal, crime, law books

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
immediacy, time, clock

‘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
family, death

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

  1. Did the defendant have a reasonable belief in the circumstances constituting the threat?
  2. Did that belief lead them to have good reason to fear death or serious injury if they did not comply?
  3. 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; R v Martin (DP) [2002] 2 Cr App R 42. 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
murder, gun, killer, criminal

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
gang, criminal, mobster

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 212; R v Fitzpatrick [1977] NILR 20.

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.


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Criminal Defences Quiz

Test yourself on the principles governing when a defendant has a defence to a criminal charge.

1 / 31

What are the two elements of the defence of persons defence?

2 / 31

Josephine commits a crime involuntarily because of a hypoglycemic episode. Which defence would you advise her to rely on?

3 / 31

What are the two elements of the defence of insanity?

4 / 31

Moira, a teenager, joins a local gang to obtain protection against bullies at school. She knows that the gang have engaged in violent robberies in the past, but the gang leader promises her that they will not involve her in these as she is too young. The gang later threatens to cripple her mother if she does not hold onto a package of drugs for them. Can Moira rely on the defence of duress when charged with drug possession?

 

5 / 31

Atticus gets extremely drunk at a party, and commits an offence as a result. He claims the alcohol made him act involuntarily, and advances the defence of automatism. Will his defence succeed?

 

6 / 31

Ellen is 17 years old but suffers from a developmental disorder which gives her the emotional maturity of a 7 year-old. Can she escape liability on the grounds that she lacks criminal responsibility?

 

7 / 31

When determining whether a sober and reasonable person would have succumbed to a duress, what characteristics of the defendant is the hypothetical person given?

8 / 31

For the purposes of the defence of insanity, a disease of the mind includes mental illnesses and not physical illnesses. True or false?

 

9 / 31

Insanity is not a defence to an offence of negligence or strict liability. True or false?

 

10 / 31

Can an adult be convicted of being an accessory to a crime committed by a child under the age of criminal responsibility?

 

11 / 31

People are under a duty to retreat rather than use force in self-defence is they are able. True or false?

 

12 / 31

Can the defence of self-defence be relied on if the defendant provoked the victim to attack?

13 / 31

Josephine commits a crime involuntarily because of a hyperglycemic episode. Which defence would you advise her to rely on?

14 / 31

Celestine owes her drug dealer, Mia, a lot of money. On Sunday night, Mia tells her that if Celestine does not pay her back by Monday morning she will kill her daughter. Celestine tells her she does not have the money, so Mia tells her to mug Richard as he carries a lot of money on him at all times. Celestine tries to get help from the police, but they tell her they do not believe her. Celestine robs Richard, but is caught soon after and arrested. Can Mia rely on the defence of duress?

 

15 / 31

For the purposes of the defence of insanity, a disease of the mind may be caused by any internal or external trigger. True or false?

 

16 / 31

When establishing self-defence or defence of others, can the defendant rely on any mistaken beliefs as to the circumstances that are the result of his being voluntarily intoxicated?

 

17 / 31

What three elements must the defendant show to rely on the defence of automatism?

18 / 31

What are the three elements of the defence of duress?

19 / 31

Micah mistakenly believes that Joseph is threatening to kill her unless she robs a bank. Can she rely on her mistaken belief to establish the defence of duress?

20 / 31

Can the defence of self-defence be relied on where the force is used pre-emptively?

21 / 31

Is duress a defence to murder?

22 / 31

What three elements must be shown to establish the defence of necessity?

23 / 31

What is the age of criminal responsibility in England and Wales?

24 / 31

When establishing the defence of duress, what three elements must exist before the impact of the threat on the defendant is considered sufficient?

25 / 31

Leo is trying to escape a burning building. The only way out is up a ladder, but that ladder is being blocked by Gareth. Gareth is frozen in fear and cannot move out of the way to let Leo pass, nor can he move up the ladder. Because they will both die if Leo does nothing, Leo pulls Gareth off the ladder, causing him to fall to his death. He is later charged with Gareth's murder. Is the defence of necessity available to him?

 

26 / 31

Celestine is driving when she feels the onset of a hypoglycemic episode. She is not able to pull over in time before the episode starts. She is barely in control of her body, but is able to move the steering wheel a little and as a result is able to avoid hitting pedestrians. She eventually collides with a tree. Can Celestine rely on the defence of automatism in relation to any criminal offence she is charged with?

27 / 31

Lucy, Theo and Marius were trapped in a sinking ship. To buy time pending the arrival of a rescue vessel, Lucy threw Theo overboard. Theo drowned. Lucy has been charged with murdering Theo. She proves that if she did not kill Theo, the ship would have sunk and she and Marius would have died. Can she rely on the defence of necessity?

 

28 / 31

Celestine owes a loan shark, Mia, a lot of money. On Sunday night, Mia tells her that if Celestine does not pay her back by Monday morning she will kill her daughter. Celestine tries to get help from the police, but they tell her they do not believe her. Celestine then robs a local corner store to get the money to pay back Mia, but is caught soon after and arrested. Can Mia rely on the defence of duress?

 

29 / 31

Micah is charged with stealing drugs from a pharmacist. They rely on the defence of duress, arguing that they were under the threat of serious injury or death as they were withdrawing heavily from medication at the time. Is the defence likely to succeed?

 

30 / 31

Omar takes prescription medicine for depression. One day, he has a rare reaction to the medicine which causes him to involuntarily commit a criminal offence. The prosecution argue that he cannot rely on the defence of automatism, because he voluntarily took the medicine which caused the automatism. Will this argument succeed?

 

31 / 31

Is the defence of necessity available to an offence of strict liability?

 

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