Duress

What is Duress?

This is a defence in criminal law based on the fact that the defendant has been effectiveley forced to commit the crime. 

It is not available as a defence for the crimes of:

• murder
• attempted murder, or
• possibly the offence of treason.

In R v Howe (1987), the house of lords ruled that the defence was not available to anyone charged with murder, even if he or she was only a secondary party and had not done the killing him or herself. 

The Court of Appeal confirmed in R v Wilson (2007) that this rule applies even if the defendant is young and less able to resist pressure. 

Duress by Threats:

The judge in Hansan (2005) identified a number of tests, all of which must be satisfied for the defence to succeed:

• There must be a threat of death or serious injury
• The threat must be directed against a defendant, a close family member or people for whom the D is responsible
• Whether the D acted reasonably will be judged objectively. The 2 part Graham (1982) test must be satisfied.
• There must be a nexus between the crime nominated and the crime committed
• There was no evasive action the defendant could of taken. 
• The defence will usually fail if the D associates with people who are known to make threats (if he has voluntarily laid himself open to the threats). 

The threat:

• The threat has to be of death or serious injury. 
• Serious injury will be given its normal meaning (GBH)
• A lesser threat, such as threat to disclose a previous conviction is not sufficient. However, provided there are serious threats, the cumulative effect of the threats can be considered, as in R v Valderrama-Vega(1985). 
• The threat must be effective at the moment the crime is committed, but this does not mean that the threats need to be able to be carried out immediately. 

Against whom must the threat be made?

The threat must be directed against;

• The defendant, or
• his or her immediate family, or
• someone close to him or her, or
• a person for whose safety the defendant would reasonably regard him-or herself responsible.

Did the defendant act reasonably?

In deciding if the…