• Common law defence
  • Available only to those who were acting under threat of death or serious personal injury to themselves or another
  • Burden of proof on P to disprove D was acting under duress
  • Available to all crimes except murder (Howe) and attempted murder (Gotts)
  • Will fail if property is the thing being threatened (Lynch)
  • Two forms it can take:
    • Duress by threats
    • Duress by circumstance
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Duress by Threats

  • Where D is being forced to break law under a direct threat by somebody of death/serious injury
  • R v Whelan (1934) - 'threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal'

R v Graham (1982) 

  • D, a homosexual, lived with his wife and X, another homosexual.
  • X threatened D and they killed D's wife
  • X and D charged w/murder
  • D raised defence of duress - claimed that he was acting under X's threats of violence
  • Conviction upheld: Lord Lane laid out two part - objective - test

The Graham Test

  • 1) Was D impelled to act as he did because he reasonably believed he had good cause to fear death or serious injury?
  • 2) If so, would a sober person of reasonable firmness, sharing relevant characterisitcs with D, have responded as D did?
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How Serious Do Threats Need to Be?

  • Graham test - V must have feared 'death or serious injury'

Valderrama-Vega (1985) 

  • Facts: D charged w/importing prohibited drugs + claimed duress
  • Colombian drug dealers threatened to kill/injure D's family + out him as homosexual
  • Also under financial pressure
    • Would be ruined w/out drug money
  • Held: Conviction quashed: Only threats of death/personal injury can constitute stress
    • If these are the main reason, other factors could be taken into account
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Will Serious Psychological Injury Suffice?

Baker and Wilkins (1997)

  • threat of serious psychological harm would not satisfy the defence


  • Obiter - the threats to mental health may suffice
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Threats to Whom

  • Most of the time, threat will be aimed at D
  • Valderrama-Vega - threats to D's fam may be sufficient
  • Cases suggest that a thriet aimed at an acquaintance of D may suffice
  • No case law yet for strangers
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Threat has to be in direct relation to crime commi


  • D robbed building society - owed money
  • Nobody expressly told him to rob it
    • Money lenders were only pressing him to pay
  • Conviction upheld: related to consequences of not paying money rather than not committing offence
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Must the Threat be Immediate?

  • Defence will fail if D could have reasonably escaped from it
    • Likely that duress will fail if D had opportunity to take steps to prevent the harm by informing the police

R v Gill (1963) 

  • D told to steal employer's lorry or face threat of violence
  • Obiter: D would not be able to rely on defence because he had enough time between threat + carrying out theft of lorry to inform police

R v Hudson and Taylor (1973)

  • Two young Ds witnessed an assault by X. Before trial, Ds were threatened w/violence if they gave evidence against X. 
    • Those threatening them were in public gallery, intimidating Ds as they took stand
  • Fearing for their safety, Ds committed perjury + were convicted as threat not immediate
  • Held: Conviction quashed: court ruled a threat is imminent if, at time of committing offence, it was 'opperating on the D's mind'
    • This will depend on the facts
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Must the Threat be Imminent? Cont

R v Abdul-Hussain and Others (1999) 

  • Iraqi muslims hijacked flight to Jordan + forced it to fly to Britain
  • Surrendered peacefully
  • Claimed they were in fear of their lives as opponents of Iraqi regime
  • Conviction quashed: defence of duress available in these circumstances; no requirement to wait for 'the knock on the door'

Pommell (1995)

  • D kept gun for friend in middle ofnight
  • Claimed that there was overnight time delay before he would inform police
  • Held: delay of a few hours not excessive - especially in middle of night

Hassan (2005)

  • Test: Belief by D was that threat was immediate or almost immediate. Belief must be reasonable
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Self-Induced Duress

Voluntarily Associating w/ Criminals

  • Defence unavailable to D who voluntarily joins a violent criminal gang
    • Or associates w/violent person

R v Sharp (1987) 

  • D joined gang that carried out robberies - one time, one person was killed by gang member
  • Whole gang charged w/murder
  • D claimed he acted under duress
  • Conviction upheld: a D who voluntarily and with knowledge of its nature joins a criminal organisation which he knew might bring pressure on him to commit an offence cannot rely on duress

Hassan (2005)

  • D voluntarily associated w/prostitute + her violent boyfriend - X
  • X threatened D into committing burglary
  • HL reinstated conviction - if D foresaw (or should have foreseen) risk of being made to commit an offence, then defence = unavailable
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If D Didn't Know Gang = Potentially Violent

R v Shepard

  • D = member of shoplifiting gang
  • At burglary trial, D raised duress, claiming he and his fam were threatened w/violence when trying to leave the gang
  • Conviction quashed: while someone who joins a violent gang must expect to be threatened, this is not necessarily true of non-violent gangs
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Graham Test Part 2

Would a sober person of reasonable firmness, sharing [some of] D's characteristics, have responded as D did?

  • Mostly objective
    • Only characterisitcs that can be taken into account = those that affect D's ability to resist X's threats
  • Self-inflicted characteristics caused by voluntarily intoxication = irrelevant

R v Bowen (1996)

  • D = low IQ
  • Charged w/offence but pleaded duress
  • Appeal dismissed: low IQ not relevent to his ability to resist threats
  • Following characteristics can be taken into account for characteristics:
    • Age
    • Physical disabilitis inhibiting self-protection
    • Recognised psychiatric disorder
    • Gender (being female)
    • Pregnancy
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  • Threat must be to cause death/serious injury - Graham
  • Offence committed must be directly related to threat - Cole
  • Threat must be towards D/D's fam/people D would regard himself as responsible for - Valderrama-Vega
  • D had no opportunity to escape/inform proper authorities - Gill / Hudson and Taylor / Hassan
  • Jury questions both objective - did D 'reasonably believe' - Graham / Hassan
  • Defence will fail if D joins known violent criminal organisation - Sharpe
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Duress by Circumstances

  • Circumstances dictate that - unless D commits a crime - either he or another person will be killed/suffer serious injury

R v Willer (1986)

  • a gang of hooligans shouted at D + surrounded his car
  • D drove off into shopping precinct
  • D charged w/reckless driving
  • Held: conviction quashed: duress = correct defence


  • Two plain-clothed PCs approached D. D recklessly drove away, thinking the PCs were going to attack him
  • Conviction quashed: the threat need not be actual, as long a D reasonably believes it's a threat
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Duress by Circumstances Cont

R v Martin (Colin) (1989)

  • D charged w/driving while disqualified
  • Claimed duress: his wife would kill herself if he didn't drive his son to work
  • Held: Defence only available if:
    • D objectively acted reasonably and proportionately to avoid threat of death/serious injury
      • For jury to decide if basis of D's reasonable belief meant he had good cause to fear death/serous injury to himself or another, and whether a sober person of reasonable firmness, sharing D's other characteristics, would have responded to the situation as D did


  • Can D objectively be said to have acted reasonably and proportionately (to the threat/circumstances)?
  • Did D have good cause to fear death/serious personal injury
  • Would a sober person of reasonable firmness have acted in a similar way


  • Defence applies to all offences but murder + attempted murder
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Limitations to Defence

  • Threat must be one of death/serious personal injury - R v Graham
  • Threat to damage/property won't suffice
  • Defence not available to D who continues to offend after the threatening circumtance has ceased
    • DPP v Bell
      • Drunk D - fearing serious personal injury from X - ran to his car + drove away
      • Only drove a short distance - no longer than was needed to get to safety
      • Conviction quashed: had stopped when threat no longer present
  • Defence unavailable if duress of circumstance = 'internal'
    • R v Rodger (1998)
      • Ds escaped prison - claimed duress because they were considering suicide as response to staying in prison
        • Internal threat
      • Convictions upheld: threat must be external. One's own thoughts cannot amount to duress
  • If D can escape threat/inform authorities, defence = likely to faii - Gill
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Limitations to Defence Cont

  • Unavailable to murder - Howe, Gotts, Dudley v Stephens. Exception - Re A Children
    • Dudley and Stephens
      • Sailors ate cabin boy to survive shipwrecked
      • Defence unavailable
    • Re A Children
      • Debate surrounding operation on conjoint twins
        • If operation went ahead, one would die but the other would live
        • If operation didn't happen, both would die
      • As an exceptional case, duress was allowed
      • Did NOT set a precedent
  • Defence cannot be extended to cover fear of psychiological injury - R v Baker and Wilkins
    • But see Shayler
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