The defence of Duress!!


Duress by Threats!!

  • The threat of violence is directed at D by another person who demands they do a specific crime otherwise they will face death or serious injury.
  • The threat must be of death or serious injury, however  serious threat+threat disclosure=cumulative effect of the threats can be considered (Valderrama-Vega 1985)
  • Threats to injure family/friend can be sufficent (Martin 1989/Conway 1988)
  • Two stage jury test a) Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death (a mainly subjective test) b) if so would a sober person of reasonable firmness, sharing the characteristics of D, have responded in the same way? (an Objective test) These tests laid out in (Graham 1982)
  • court can take into account any special characteristic of D which would make him more likely to believe threats (Martin DP 2000/ Hasan 2005- belief in threat must be genuine and reasonable)
  • Characteristics taken into account- Age, pregnancy, serious physical disability,mental illness or physical disorder and sex (Bowen 1996).
  • No safe avenue of escape-duress only succeeds where there is no avenue of escape (Gill 1963 / Hudson and taylor 1971-police protection not always effective).
  • The threat must be effective at the moment the crime is committed, if threat is hanging over D the duress is available (Abdul-Hussain 1999).
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Duress by Threats 2!!

Abdul-Hussain (1999)  court of appeal ruled that: a) there must be immienent peril of death or serious injuy to D, or to those for whom he has responsbility; b) the peril must operate on D's mind at the time of committing the otherwise criminal act, as to overbear his will; this is a matter for the jury and c) execution of the threat need not be immediately in prospect. Duress only available where D is told to carry out a specific offence (Cole 1994) This only applies to duress by threats.

  • Intoxication and duress- voluntary=no duress, however if there is no mistake & intoxication is irrelevant to the duress then D can use the defence.
  • Self-induced duress- D cannot use duress where he brought the duress upon himself by: a) Joining a criminal gang which D knows is likely to use violence b) Or by putting himself in a position where he knows that he is likely to be subjected to threats of violence or actual violence like becoming indebted to a drug dealer (Sharp 1987/ Heath 2000) however if gang is non violent then defence is available (Shepherd 1987)
  • Law on availability of duress where D voluntarily associates with violent criminals is defined in Hasan (2005 as : a) if D associates with criminals, he will not normally be able to use duress for any offence he commits due to threats of violence by those criminals and b) D can only use duress if he did not foresee that they would try to make him commit an offence through threats and a reasonable person would not have foreseen this either.
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Duress by Circumstances!!

  • D is forced to act due to the circumstances surrounding him (Martin 1989) (Willer 1986) No specific threat needed ( Conway 1988)
  • Graham 1982 test applies here:
  • Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death and;
  • If so, would a sober person sharing D's characteristics have responded in the same way? 
  • Duress available to all offences apart from murder, attempted murder and treason (Pommell 1995).
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