Duress and necessity

• Duress is a complete defence for most crimes.

• The burden of proof is on the prosecution to disprove that the defendant was under duress.

• Duress is not available for the offence of murder, nor is it a defence for attempted murder.

CASE: R v Howe (1987), R v Gotts (1991).

The two types of duress are duress by threats and duress by circumstances.

Duress by threats

• The defendant needs both Actus reus and mens rea for the crime, but conviction is escaped because they will be overborne by personal threats or by threats to family members or to people who the defendant is responsible to.
• The ability to use this defence has been reduced since the case of R v Hasan (2005).
• The test for this defence is made up of two parts, one part involving subjective elements and the other objective elements. It was established by the court of Appeal in R v Graham (1982).
• For duress of threat to succeed the jury needs to consider the whether the defendant was impelled to act in the belief that they would be killed or physically injured if they did not comply with the threats and if so would a sober person of reasonable firmness sharing the same characteristics of the defendant have acted in the same way.

The Graham test part 1 - the first part requires that the threat be serious, unavoidable and imminent, and the duress must not be self-induced.

Seriousness of the threats - Threats of death and personal injury are necessary for the defence of duress. CASE: R v Valderrama-Vega (1985).

Unaviodable and imminent threat - The defendant must not be able to avoid the threat, so they couldnt have had time to inform the police. CASE: R v Gill (1963), R v Hasan (2005). It doesnt matter if there was no actual threat, as long as the defendant honestly though that there was an imminent threat.

Self-induced duress - The defence of duress will not be available where the defendant has voluntarily associated with criminals. The defendant should have reasonably foreseen that they might be forced to commit crimes by threats or violence. CASE: R v Hasan(2005)

The Graham test part 2 - This part of the Graham test is objective, it requires that a sober person of reasonable firmness would have also done as the defendant did. The court will take into account some of the defendants characteristics.

Characteristics of the defendant - The court will take into account the age and sex of the defendant, as this may affect their ability to resist pressure. The jury can also take into account a defendant's mental illness or physical disability. CASE: R v Boden (1996).

DURESS BY CIRCUMSTANCES

• This type of duress requires fear of imminent death or serious injury.
  
• It is mainly used as a defence for driving offences, where defendants claim to have felt forced to commit a driving offence because of the circumstances they found themselves in, rather than because they were threatened to.

CASE: R v Conway (1989), R v Martin (1989).

• This is very similar to duress of circumstances and was considered not to exist until the case of Re A (2000).

• The test for necessity requires that an act was necessary to avoid inevitable evil, no more was done than was necessary, and the evil inflicted was not disproprtionate to the evil avoided.

CASE: Re A (2000), R v Dudley and Stephens (1884), Southwark London Borough Council v Williams (1971)

Civil law and similarity of defences - critisied for leading cases involved in civil law. It is also so similar to duress of circumstances, many consider that it need not be a seperate defence.

Self-induced duress - The case of R v Hasan (2005) wanted to restrict the use of duress defences so that only people who really deserved it could use it. The test for deciding if the defendant voluntarily exposed themself to risk and therefore had self-induced duress, is objective and could mean that under this defence no one can associate with a criminal on the off chance that they will be threatened.

Duress, murder and attempted murder - The fact that duress is not available for the offence of murder and attempted murder has been criticised by the legal academics Smith and Hogan. Duress should be a defence to all crimes.