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  • Created on: 13-12-12 21:20


This is a common law defence which sees D admit that he committed the AR with the MR, but is claiming that s/he only did so because he was faced with threats of SERIOUS INJURY or even DEATH, either to himself or others close to him, if he did not commit the offence. Therefore, D has to choose between being killed/seriously injured OR committing a crime.

Duress is not a denial of MR (like intoxication), nor a plea that actions were justified (like self defence). Instead, D wants to be excused because his actions were involuntary (not in the automatism sense), but on the basis that D had no other choice, i.e. morally involuntary. D is also a terrified victim and ceases “to be an independent actor” and so defence operates as a concession to human frailty (forgiving D for picking the lesser of the evils).

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PROCEDURE: D bears the evidential burden of introducing evidence of duress. It is then up to the prosecution to prove beyond reasonable doubt that D was NOT acting under duress and is thus in line with Woolmington [1935]. This is more likely than any other defence to depend of assertions that are particularly difficult for the prosecution to investigate and disprove (which probably explains the defence being confined within quite strict limits.)

EFFECT OF DEFENCE: This is a general and complete defence which results in a FULL ACQUITTAL. It fully ‘excuses what would otherwise be criminal conduct’. SOURCES OF DURESS:

Two types:

  • DURESS BY THREATS: D is threatened by another person to commit a particular crime.
  • DURESS OF CIRCUMSTANCES: The threat comes from the situation in which D finds himself in and responds, by breaking the law.

There is no difference in legal requirements of each type; the distinction exists to help clarify the law.

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The threat must be of DEATH or SERIOUS INJURY. A threat to damage or destroy property is insufficient. Lynch [1975] Lord Simon: “The law must draw a line somewhere; and as a result of experience and human valuation, the law draws it between threats to property and threats to the person.” Threats to expose Ds adultery/sexual orientation were deemed insufficient in R v Singh [1973] however, such threats, or threats to destroy property, might be relevant to mitigation in sentencing. 

Although there must be a threat of death or serious injury, it need not be the sole reason why D committed the offence.                                                                                         R v Valderrama – Vega [1985] CA D was heavily in debt and received death threats from a mafia type organisation and so illegally imported cocaine. D had also been threatened with having his homosexuality disclosed. The trial judge directed the jury that duress was only available if the death threats were the sole reason for D committing offence. Jury convicted D.

CA: Quashed the conviction as the jury was entitled to look at the CUMULATIVE EFFECTS of all the threats. So long as the threats of physical violence were ‘sine qua non’ to Ds decision, other factors could be taken into account to add to the weight. (Sine qua non: “without which it could not be" or "but for..." or "without which (there is) nothing”).

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At one time it seemed that the threat had to be directed at D personally. However, in Ortiz [1986] threats that Ds wife and children would ‘disappear’ were accepted. Case law has extended this to include other people that D might be responsible for (Wright [2000]), and even friends.

R v Conway [1988]

Ds car passenger had been shot at by 2 men a few weeks earlier. Whilst sat in the stationary car he saw 2 men running towards the car. He thought they were the 2 men who were after him (when in fact they were plain clothed policemen) and he yelled at D to drive off. D drove off very fast and was charged with reckless driving. The trial judge refused to leave duress to the jury and D was convicted. CA: Quashed the conviction.

As yet, there has been no official decision on whether a THREAT TO A COMPLETE STRANGER would be sufficient to excuse Ds criminal behaviour but it SEEMS LIKELY that the courts, treating each case on its merits, WOULD ALLOW THIS to excuse why you committed a crime rather than let an innocent person suffer. In fact this position is supported by the DRAFT CRIMINAL CODE 1989.

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Immediate Threat

The threat must be operative/effective at the moment the crime is committed, but originally this did not mean that the threat had to be capable of being carried out immediately.

Hudson & Taylor [1971] D, and E were prosecution witnesses in a malicious wounding trial (of a man named Wright) having witnessed the incident at the pub. However, D and E failed to identify Wright and he was acquitted. D and E were later charged with perjury. D claimed that another man, F, who had a reputation for violence, had threatened her that if she ‘told on Wright’ she would be cut up. She passed this threat onto E, with the result that they were too frightened to identify Wright in court (especially as F was also sat in the public gallery.) The trial judge withdrew duress from the jury as the threat could not be immediately carried out when testifying in the safety of the courtroom.

CA: Quashed their convictions. Lord Widgery CJ: “When...there is no opportunity for delaying tactics and the person threatened must make up his mind whether he is to commit the crime or not, the existence at that moment of threats sufficient to destroy his will ought to provide him with a defence even though the threatened injury may not follow instantly but after an interval.” The threats were no less powerful because they were not immediately effective.

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Immediate Threat

In Abdul-Hussain [1999] (and confirmed in Safi and Others [2003]) the CA decided that the threat to D (or other persons) had to be believed by D to be IMMINENT but not necessarily IMMEDIATE. This led to the CA quashing hijacking convictions after each trial judge had directed the jury to disregard the threat to Ds unless it was ‘immediate’.

Abdul-Hussain [1999] CA

Ds fled to Sudan from Iraq due to the risk of execution in Iraq because of their religion (Shiite Muslims). Fearing they would be sent back, they hijacked a plane and landed it in the UK to seek political asylum. The trial judge decided that the danger was not sufficiently ‘close and immediate’ as to give rise to a ‘virtually spontaneous reaction’ and told the jury to disregard duress (of circumstances) as the threat of death/injury would not have immediately followed had they not hijacked the plane.

CA: Quashed the convictions. Threat need not be immediate but imminent in the sense that it was hanging over them/overbearing their free will.

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No longer imminent but now immediate

HOWEVER, when the HL came to examine the issue in Hasan [2005] it was decided that the correct test was that the threat had to be believed by D to be IMMEDIATE or ALMOST IMMEDIATE.

Hasan [2005] (formerly Z)

Lord Bingham: “It should be made clear to juries that if the retribution threatened against D or his family or a person for whom he reasonably feels responsible is not such as he reasonably expect to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.”

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Duress is only available if D is placed in a situation offering no safe avenue of escape. D will be expected to take advantage of any reasonable opportunity that he has to escape from the duressor and/or contact the police.

Gill [1963] D claimed that he and his wife had been threatened unless he stole a lorry. However, there was a period of time during which he was left alone and so could have raised the alarm.

Pommell [1995]

Police found D to be in possession of a firearm without a firearms certificate. He claimed that during the night, a friend (Errol) had come to see him, intent on shooting some people who had killed Es friend. D persuaded E to give him the gun and he took it upstairs (between 12:30am and 1:30am). D claimed he had intended to hand the gun to the police the next day. D convicted of possessing a prohibited weapon (Firearms Act 1968) after the judge refused to allow duress (of circumstances) to be left to the jury noting that even if D had been forced to take the gun, he should have gone immediately to the police. CA allowed the appeal and ordered a re-trial where the conviction was set aside. This should have been left to the jury to consider originally.

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Hudson & Taylor [1971]

The prosecution argued that D and E should have sought police protection. Lord Widgery CJ rejected this argument, which, he said “would, in effect, restrict the defence...to cases where the person threatened had been kept in custody by the maker of the threats, or where the time interval between the making of the threat and the commission of the offence had made recourse to the police impossible.”

Although it was acknowledged that the defence had to be kept ‘within reasonable grounds’, the Crown’s argument would impose too ‘severe’ a restriction. The CA confirmed there were cases where the police cannot provide effective protection. Although they would have been protected during the case, the threat would have persisted afterwards.

However, this decision was criticised by the HL in Hasan [2005] and thus it is now doubtful that a D could use duress where there was an opportunity to go to the police.

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Duress (by threats) cannot exist in the abstract. It is only a defence if D commits some specific crime which was nominated by the person making the threat. There must be a link (nexus) between the threat made and the offence committed.

R v Cole [1994] CA

D claimed that he, his girlfriend and child had been threatened (plus he had been hit with a baseball bat) in order to make him repay money he owed. D carried out 2 building society robberies to get the money and at trial said he only did them because of the threats of violence, therefore claimed duress.

CA: Conviction upheld. He had NOT been told to commit the ‘robberies’ or else. Threats to him were directed at getting repayment, not at making him commit a robbery and therefore, insufficient connection between threats and the crime committed.

THIS RULE IS ONLY APPLICABLE TO DURESS BY THREATS as in duress of circumstances, the defence may be used for any offence which is an appropriate response to the danger posed by the circumstances.

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D will be denied the defence if he voluntarily places himself in a situation that risks him being threatened with violence to commit a crime, e.g. voluntarily joining a criminal gang, commit offences, but forced under duress to commit other crimes.                                    R v Sharp [1987] CA D and two others had attempted an armed robbery of a post office but were thwarted when the alarm was sounded. As they made their escape, one of the others fired a shotgun in the air to deter pursuers. Three weeks later they carried out a second robbery which resulted in the murder of the postmaster. D claimed he was only the ‘bagman’ and that he was not armed and only took part in the second robbery because he had been threatened with having his head blown off if he did not cooperate. The trial judge withdrew duress and D was convicted of manslaughter, robbery and attempted robbery. CA: Upheld convictions. D knew of the others’ violent and trigger happy nature several weeks before he attempted to withdraw from the enterprise.        Lord Lane CJ: “Where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence.”

This also applies to Ds who put themselves in a position knowing it may be likely he will be subjected to threats/violence, e.g. becoming indebted to a drug dealer (Ali [1995], Heath [2000], Harmer [2001]).

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However, contrast this with Shepherd [1987] which shows that gang membership does not always remove duress. It will depend on the nature of the gang and the activities it engages in.

Shepherd [1987] CA

D joined an organised gang of shoplifters who would enter a shop; one would distract the shopkeeper as others would steal as much as they could, normally cigarettes. This activity, although criminal, was non-violent. D said he wanted to stop taking part but was then threatened with violence unless he continued.

CA: Quashed his conviction. If D had no knowledge that gang was likely to use violence, duress was available.

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The conflict in allowing duress or not when D has voluntarily associated themselves with violent people was resolved in: Hasan [2005] HL D, a driver and minder for Y, a prostitute, had been threatened by Ys boyfriend, X, who had a reputation as a violent gangster and drug dealer, to carry out a burglary. D attempted to burgle a house, armed with a gun, but was scared off by the householder. D was charged with burglary and pleaded duress. The trial judge directed the jury that duress was not available if D had voluntarily placed himself in a position in which threats of violence were likely. D was convicted. The CA quashed the conviction but certified the following Q for the HL to consider~Q Should the defence fail when, as a result of voluntary association, D:

  • 1. Foresaw (or should have foreseen) the risk of being then and there subjected to any compulsion by threats of violence, OR
  • 2. Foresaw (or should have foreseen) the risk of being subjected to compulsion to commit criminal offences, OR
  • 3. Foresaw the possibility of offences of the same type/gravity as that ultimately committed.”                                 HL (4:1) felt that option 1 correctly states the law. 
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Therefore, duress will fail where D voluntarily associates with others who are engaged in criminal activity and he foresaw (or ought reasonably to have foreseen) the risk of being subjected to any compulsion by threats of violence. This was confirmed in:

Ali [2008]

D had been threatened with violence by a man called Hussein who had a violent reputation and whom D was friends with. Trial judge said that D had chosen to join “...very bad company...”

Both Hasan [2005] and Ali [2008] therefore confirm the successful use of duress in Shepherd [1987] despite D having joined a gang. As they were non violent, D would not have foreseen the “risk of being then and there subjected to any compulsion by threats of violence”.

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This defence is not automatically available just because D reacted to a threat; the threat must be one that the ordinary man would not have been able to resist.

Graham [1982]

Lord Lane CJ laid down a two part test:

1. Was D compelled to act as he did because he reasonably believed he had good cause to fear death or serious injury? (Subjective)

2. If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way? (Objective)

This aims to establish a balance between the seriousness of the harm threatened and the illegal actions. The HL approved of this test in R v Howe & Bannister [1987].

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If the jury is satisfied D reasonably believed he faced a threat of death or serious injury and he genuinely thought it would be carried out unless a crime was committed, then this part is answered in Ds favour. There is no requirement that what D feared actually existed.                                                                                                                    Cairns [1999] V, who was drunk, stepped out in front of Ds car, forcing him to stop. V threw himself onto the bonnet and spread eagled himself on it. Several of Vs friends were nearby and D felt threatened so he drove off with V on the bonnet. The friends ran after the car, shouting. D had to brake in order to drive over a speed bump; V fell off in front of the car and was run over. D convicted of s.18 OAPA 1861 with intent after the trial judge directed the jury they had to consider whether Ds actions were “actually necessary”. CA: Quashed conviction. It was not necessary for the threat to actually be real, as long as D reasonably believed it to be.

Therefore, if D misunderstands the threat, D will be judged on facts as he ‘reasonably’ believed them to be. This ‘reasonable’ aspect then made it a partially OBJECTIVE test. Thus if D honestly (but unreasonably) believes he is being threatened and commits an offence, defence should not be available. Hence, if Ds belief was purely based on his own imagination, it would not be difficult for a jury to conclude that his (honest) belief was unreasonable. Contrast this with self defence where if D believes he is being attacked and reacts in self defence, he is entitled to be judged as if the facts were as he (honestly) believed them to be. (Williams [1987])

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This is based on whether the reasonable man would have responded in the same way. However the jury is entitled to take into account some of Ds characteristics (where relevant).

Graham [1982] Lord Lane CJ: “As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness...” If an ordinary person, (with relevant characteristics), would have resisted the threat, the defence is unavailable.

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Bowen [1996] CA D had low IQ (68) and had obtained goods by deception for 2 men who had told him they would petrol-bomb him and his family. It was held that this was irrelevant in deciding whether D found it more difficult to resist any threats. The relevant characteristics must go to the ability to resist pressure and threats - low IQ does not make people less courageous or less able to withstand threats and pressure than an ordinary person.       CA said the following were relevant:

  •  AGE: Very young people and the very old could be more susceptible to threats.
  •  PREGNANCY: There is the additional fear for the safety of the unborn child.
  •  SERIOUS PHYSICAL DISABILITY: This could make it more difficult for D to protect himself.
  •  RECOGNISED MENTAL ILLNESS OR PSYCHIATRIC DISORDER: Could include post traumatic stress disorder or any other disorder which meant that a person might be more susceptible to threats. (This did not include low IQ).
  •  GENDER: Although the CA thought that many women might have as much moral courage as men.

Overall, this 2 stage test requires not only that D was overwhelmed by threats/situation but also that a sober person of reasonable firmness would have been compelled to offend as well.

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Scope of Defence

Duress by threats and duress of circumstances has been accepted as a defence to:

  •  Manslaughter (Evans & Gardiner [1976] Australian case)
  •  GBH with intent (Cairns [1999])
  •  Criminal damage (Crutchley [1831])
  •  Theft (Gill [1963])
  •  Handling stolen goods (Whelan [1934])
  •  Perjury (Hudson & Taylor [1971])
  •  Drug offences (Valderamma-Vega [1985])
  •  Firearms offences (Pommell [1995])
  •  Driving offences (Willer [1986], Conway [1988], Martin [1989])
  •  Hijacking (Abdul-Hussain [1999])

From this list, it appears that both types are available to most crimes EXCEPT:

  •  MURDER
  •  (TREASON)
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Lynch [1975] HL D drove a car under threats from an IRA gunman ‘M’. He waited outside in the car while ‘M’ and his associates killed a policeman, and then drove them away. He was charged as an accessory to murder, but his defence of duress was allowed by a 3-2 majority in the House of Lords.

Originally therefore, DURESS WAS AVAILABLE to Ds that had PARTICIPATED in a murder (such as getaway driver) but who had not actually performed the murder. HOWEVER...                                                                                                          

Howe & Bannister [1987] HL D and others took part in torturing and abusing a man who was then strangled by one of the others. On a second occasion, another man was tortured, abused and strangled, but this time by D. D claimed he only took part in the killings because of threats to him. The trial judge ruled duress was available for the first killing (in line with Lynch) where D was only a secondary party to the killing, but NOT available to the second killing where D was the principal offender. CA: Agreed.

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Murder Howe & Bannister [1987] HL cont.

HL: Reviewed previous case authorities and then exercised its power under the 1966 Practice Statement 1966 to depart from the decision in Lynch. HL declared that NO PARTICIPANT (whether principal or accessory) CAN CLAIM DURESS IN DEFENCE TO A MURDER CHARGE.

Justification for this is that the law should deny a man the right to take an innocent life even at the price of his own, but should rather set a standard of heroism and self-sacrifice which ordinary men and women should be expected to observe.  

This apparent labelling of cowardice to take someone else’s life than their own seems to ignore the fact that D is an innocent victim, too. The inapplicability to a charge of murder applies even where D is young and less able to resist pressure.

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R v Wilson [2007] CA D, aged 13, and his father were charged with murder. D stated that he helped his father because he was too frightened to disobey him. V died from a stab wound to her lung. She had also been attacked with an axe, a sock filled with pebbles, a metal bar and a knife. D admitted presence at the scene when his father attacked V and upon his instructions, fetching an axe and handing it to his father. He had also struck V once with a metal bar and kicked her. D claimed he was in fear of his father who had been violent towards him and his mother in the past. His actions were solely motivated by fear and terror, not free will. CA: D did not have a defence.

**This in turn highlights the arbitrary nature of the scope of duress (largely attributable to its common law development.)

The basis for restricting the use of duress for murder is that a D commits an offence as the ‘lesser of two evils’ in comparison to the harm with which he has been threatened. As murder involves taking a life – there can be no greater harm. The sanctity of human life is paramount, but are all lives of equal value to the D? Is the law setting impossible standards?? Lord Hailsham: “If one is threatened to take a life, one is expected to sacrifice their own instead.”

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Attempted Murder

In Howe [1987], the HL said obiter they thought duress should not be available to attempted murder either. As this was obiter, it was not binding, however in Gotts [1992] the CA decided to follow the obiter statement and make it binding.

R v Gotts [1992] HL

D, 16 year old boy, was ordered by his father to kill his mother and threatened he would be shot if he did not. (Mother and father had separated.) D stabbed his mother and seriously injured her, but did not kill her. He was charged with attempted murder and claimed duress, saying he had done it only because his life was in danger, but the trial judge refused to allow the defence to go to the jury.

CA: Dismissed Ds appeal and applied the obiter of Lord Griffiths in Howe [1987] and the HL agreed that duress is not available attempted murder (nor, per Lord Lowry, with "most kinds of treason").

The main difference between murder and attempted murder is the pure chance that the victim dies or lives, and attempted murder may be morally worse in requiring an intention to cause death and no less. (Whereas for murder, intention to cause GBH can suffice.)

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Intoxication and Duress

If D becomes voluntarily intoxicated and mistakenly believes he is being threatened, duress is unavailable. A mistake in these circumstances is not reasonable. However, if there is no mistake and there is still a threat, then the intoxication is irrelevant and duress is available, e.g. where D is threatened to commit an offence by a man with a gun. Drunk or not, there is still a threat and there is still duress.

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This has only really received official recognition from the appeal courts in the last 25 years. The first cases all, coincidentally, involved driving offences.

Here there is no express threat to an individual to do ‘this’ or ‘else’. It is the circumstances that are threatening and D must commit a crime in order to prevent a greater harm. The crime committed is not nominated; it is whatever the reasonable response is. DRIVING OFFENCES:

R v Willer [1986] CA

D was forced to drive his car on the pavement in order to escape a gang of youths (20+) who were intent on attacking him and his passengers. Having made his escape D then drove to the police station to report the gang but the police also charged him with reckless driving. D was convicted as the judge ruled that duress was unavailable and did not leave it to the jury.

CA: Quashed the conviction. (Even though D had only received an absolute discharge and 10 penalty points.) It was held that D should have a defence as he was “wholly driven by the force of circumstances into doing what he did and did not drive the car otherwise than under that form of compulsion, i.e. under duress.”

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R v Conway [1988] CA

Ds car passenger had been shot at by 2 men a few weeks earlier. Whilst sat in the stationary car he saw 2 men running towards the car. He thought they were the 2 men who were after him (when in fact they were plain clothed policemen) and he yelled at D to drive off. D drove off very fast and was charged with reckless driving. The trial judge refused to leave duress to the jury and D was convicted.

CA: Quashed the conviction.

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Martin [1989] CA Ds wife became hysterical and threatened suicide unless he drove her son to work. She had also threatened suicide a few days previously so D feared she would actually go through with it. D was already disqualified from driving but agreed to do this and was apprehended by police within a ¼ mile of his house. The trial judge refused to leave duress to the jury. CA: Quashed the conviction who ruled that duress of circumstances was available and the same 2 stage test put forward in Graham [1982] CA applied.

  • 1. Was the D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? and...
  • 2. If so, would a sober person of reasonable firmness, sharing the Ds characteristics have responded in the same way?
  • If the answer to both is YES, the jury should acquit.

DPP v Bell [1992], DPP v Davis [1994], DPP v Pittaway [1994] Ds convictions for driving with excess alcohol were all quashed on the basis Ds had driven to escape violent gangs.

Duress of circumstances is more likely to succeed if, objectively, D acted reasonably and proportionately to avoid death or injury.

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Other Offences and No Actual Threat

OTHER OFFENCES: It was not until decision of Pommell [1995] that it became clear duress of circumstances could be a defence to all crimes (except murder, attempted murder and treason).

NO ACTUAL THREAT: The courts had to consider whether the defence was available where D reasonably perceived a threat of serious physical injury or death, even though there was no actual threat. Cairns [1999] confirms that it is sufficient for D to show that he acted as he did because he reasonably perceived a threat, he is not required to prove that the threat was an actual or real threat.

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Threats emanating from the D will not suffice. In Rodger and Rose [1998] CA, Ds claimed they had been forced to escape from prison because otherwise they would have been driven to commit suicide as a result of the extreme depression they were suffering.


Continuation after the threat has expired will not be covered.

DPP v Bell [1992] D was able to rely on duress to driving with excess alcohol as he only drove far enough to escape his attackers.

DPP v Jones [1990] Similar circumstances, but here D drove all the way home and was not permitted to rely on duress once the threat had passed.

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