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THE DEFENCE OF DURESS
Duress is a complete defence for most crimes however, duress is not available for the offence of
murder (Howe, 1987) nor for attempted murder (Gotts, 1991). There are two types of duress:
duress by threats, and duress by circumstances. If the defendant employs the defence of
duress, it is up to the prosecution to prove the defendant was not under duress at the time of the
DURESS BY THREATS
For the defence of duress by threats, the defendant has both the actus reus and the mens rea for
the crime, but conviction is escaped because his/her will was overcome by personal threats or by
threats to family members or threats to people for whom the defendant is responsible.
The test for duress was established by the Court of Appeal in R v Graham (1982).
The test has two parts subjective and objective:
1. Did the defendant reasonably believe that he or she would be killed or physically injured if
he or she did not comply with the threats?
2. Would a sober person of reasonable firmness have done the same as the defendant?
The 1st (subjective) part of the test sets out a number of conditions:
The threats must be serious, unavoidable and imminent.
There must be no opportunity to inform the police or avoid committing the crime (no safe
avenue of escape)
No need for an actual threat as long as the defendant honestly believed there was an
imminent threat. The mistake must be honest and reasonable.
The defence will not be available where the defendant has voluntarily associated himself or
herself with criminals.
The 2nd (objective) part of the test:
Requires that a sober person of reasonable firmness would have done the same as the
defendant in the circumstances.
The court will, however, take into account the defendant's age, sex, physical disability or
Key point: The case of R v HASSAN (2005) has restricted a defendant's chances of proving
defence of duress. The court wanted to restrict the use of duress so that only people who really
deserve it can use it.
DURESS BY CIRCUMSTANCES
Like duress by threats, this type of duress requires fear of imminent death or serious injury (Baker
and Wilkins, 1997).
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It has been used mainly as a defence for driving offences where defendants claim to have felt forced
to commit a driving offence due to the circumstances in which they found themselves rather than
because they were threatened to do so.
The defence has been extended to other crimes, e.g.…read more