Defences IV: Duress

DEFENCES IV: DURESS

INTRODUCTION
Duress is a defence to all crimes except murder, attempted murder, and certain
forms of treason. The underlying reason for having this defence is a concession
to human frailty. Other jurisdictions do not have the exemption of murder
because it has to be reasonable, and it will be very rare where murder is
reasonable.
To establish the defence a defendant must show that:
1. He/She committed the crime because of threats of death or GBH
2. A reasonable person would have acted as the defendant did.
There are two forms of duress that are recognised in the law:
Duress by threats where someone has committed a crime because another
person has threatened to kill or injure someone if they do not commit the
crime.
Duress by circumstances where no one has specifically told the defendant
to commit the crime but the circumstance are such that the defendant
believes that unless he commits a crime he or others will suffer death or
serious injury.
Sometimes it can be difficult to decide whether a case was one of duress by
circumstance or duress by threats, but as the rules governing the two defences
are identical it does not matter in practice which it is. There is no difference in
the legal requirements between them and the distinction is made to help
clarify the law.
DURESS BY THREAT
Hasan [2005]
There had to be a threat of death or serious injury.
Gotts [1982]
By a majority of 3 to 2, the HL decided that duress was not a defence to attempted murder. It is
unclear whether the defence applies to incitement or conspiracy to murder.
The requirements for duress are quite narrow.
Erdemovic
This concerned a soldier serving in the Bosnian army. He was told that as part
of the firing squad, he would use an automatic weapon to kill people
throughout the day. He said he did not want to do this. His officer told him to
do it or to get killed.
It was controversially decided that it couldnt rely on duress because there was
nothing he could do to prevent the crime as there was a firing squad. At the
end of the day he could only have been one more corpse on the floor, so why
should he have had to lay his life down entirely pointlessly because they were
going to kill everyone anyway. Recently this has been accepted.

Defences IV: Duress

Notably this is not the law here, if you are required to kill or attempt murder
you cannot rely on duress.
R v Howe and others [1987]
Point of Law -> Duress is not a defence to murder.
Details of Case -> The HL heard a number of conjoined appeals.
Howe and Bannister appealed against their convictions for murder. They
claimed that they joined in two brutal assaults on young men which culminated
in their deaths only because they had been told by an older man with a
substantial criminal record that if they did not they would suffer violence. They
understood him to mean they would be killed.
Burke and Clarkson were convicted of murdering a man known as Button.
Burke admitted he shot Button but said he did so only after Clarkson had
threatened him with violence and that in any event the gun went off
unintentionally. In both cases the key question was whether duress was a
defence to murder.
Held -> Appeals were dismissed. Duress is not a defence to murder.
The key elements of duress are set out by Lane LCJ in Graham, in a statement
which was approved by the HL in Howe:
1. Was D, or may he have been, impelled to act as he did because, as a
result of what he reasonably believed E had said or done, he had good
cause to fear that if he did not so act E would kill him orcause him
serious physical injury.
2. If so, have the prosecution made the jury sure that a sober person of
reasonable firmness, sharing the characteristics of D, would not have
responded to whatever he reasonably believed E said or did by
(committing the crime)

This requirement contains a number of separate elements:

The Threats Must be Causative
The defendant must act because of the threats or the circumstances.
The defendant must act because of the threats or circumstances and not for other reasons. It would
only be in bizarre circumstances that the defendant would commit a crime following threats of death
or serious harm, but not because of the threats. The issue is most relevant in cases where the
defendant is facing a variety of threats, only some of which are of death or serious harm.
If you were going to commit the crime anyway you cant rely on duress. What causes you to commit
the crime must be the threats of death or serious injury.
Valderrama-Vega [1985]
Details of Case -> The defendant was facing three pressures when he
committed his offence; he had been threatened with disclosure of his
homosexual tendencies, he was under severe financial pressures, and there
were threats of death or serious injury. Only the threats of death or serious
injury could form the basis of a defence of duress.

Defences IV: Duress

Held -> The CA held that he could still rely on the defence of duress as long as
the threats of death or serious injury were for him a substantial reason for
committing the crime. They did not have to be the only reason.
DPP v Bell (1992)
Details of Case -> The defendant was in fear of his life and therefore drove off in a car, even though
he had consumed excess alcohol.
Held -> It was held that even if the defence had been available for his initial driving away he had to
desist from the crime once the threat was no longer potent. By continuing to drive having escaped
from the danger area he was from then on not acting because of the threat and so could not rely on
the defence of duress.
The threats must be one of death or GBH.
Duress is available only if the threat was of death or serious harm. A lesser
kind of threat will not suffice. So threats to property, reputation or minor injury
cannot form the basis of a duress defence, even where the defendant has
committed a very minor crime.
There is some doubt whether a threat to cause a serious physical injury would
be sufficient:
Burstow
The HL explained that the phrase GBH in the Offences Against the Person Act
1861 included serious psychological illnesses. This might be used to argue that
a threat to cause a serious psychological injury could form the basis for a
duress defence.
Baker and Wilkins (1997)
The Burstow decision was rejected. The CA emphasised that only a threat of
death or physical injury would suffice.
Hasan
To found a plea of duress the threat must be to cause death or serious injury.
There are an increasing number of claims of duress these days, and so the courts are sceptical about
allowing acquittals on this basis. They try to keep the law as narrow as they can
Quayle et al, [2005]
Details of Case -> Quayle and two others were suffering various illnesses
which caused them severe pain. They were arrested after it was found that
they were growing cannabis for personal use. They were charged with
possession of cannabis contrary to the Misuse of Drugs Act 1971. The
defendants raised the defence of necessity. This was based on the argument
that the use of cannabis was necessary to avoid serious injury and pain. Their
defence was not left to the jury by the trial judge and an appeal was made to
the CA.
Held -> Appeal dismissed. It is not good enough if the threat which they were attempting to
argue is of pain.

Defences IV: Duress

The threat can be of death or serious harm to anyone
At one time it was thought that for duress to provide a defence the threat must be directed towards
the defendant or his close family. It is now clear that the defence can be available if the defendant
fears that anyone for whom the defendant reasonably regards himself responsible. This might
include a close friend or a child he was looking after. Of course the identity of the person who is in
danger from the threat will be relevant when considering whether a reasonable person would give in
to the threat.
The threat must not come from the defendant himself
Rodger and Rose (1998)
Details of Case -> The defendants were charged with offences connected with
escaping from prison. They sought to rely on the defence of duress. They
argued that they had become so depressed because of the conditions in prison
that they would have committed suicide had they not escaped. They were
therefore facing a threat of death.
Held -> The CA held that duress was not available because the threat of death
did not come from a source extraneous from the defendants.
The defendant can rely on what he reasonably believed to be a threat
What if the defendant had thought that he was facing a threat, but in fact he
was not?
Graham [1982]
Point of Law -> The defendant must have reasonable grounds to believe that
the threat had been made.
Details of Case -> G lived with wife and with his lover; a man called King. G
suffered from an anxiety disorder and took valium for this. He said valium
made him more susceptible to threats than other people. K was known for
violence and had been violent before to both G and his wife. One day G and K
took valium and drank. K suggested to G that he kill his wife. G thought this
was a threat. G agreed and went home and strangled her with electrical flex.
The CA looked at this and looked at question of whether they took valium
mattered.
Lord Lane 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
reasonablenessThe law requires people to have the self-control reasonably to
be expected of an ordinary citizen in his situation. It should likewise require
him to have the steadfastness reasonably to be expected of the ordinary citizen
in his situationThe correct approach on the facts of this case would have
been as follows: (1) was he defendant, or may he have been, impelled to act as
he id because, as a result what he reasonably believed King had said or done,
he had good cause to fear that if he did not so act King would kill him or (if this
is to be added) cause him serious physical injury?. (2) If so, have the
prosecution made the jury sure that a sober person of reasonable firmness,
sharing the characteristics of the defendant, would not have responded to
whatever he reasonably believed King said or did by taking part in the killing?
The fact that a defendants will to rest has been eroded by the voluntary
consumption of drink or drugs is not relevant to this first test.
Cairns (1999)

Defences IV: Duress

It was confirmed that if the defendant reasonably believed there was a threat
of death or GBH, the defence may be available, even if there is in fact no such
threat.
R v Hassan (2005)
The defence of duress is only available if the defendant both genuinely and
reasonably believes the threat to have been made.
The reasonable person must have responded to the threat in the way
the defendant did
The jury must decide that the reasonable person must have responded to the
threat as the defendant did. The jury, in deciding how a reasonable person
would respond to the threat, are likely to consider how severe the threat was
and how grave the required crime. In other words the jury are likely to
consider whether the defendant responded in a way which was proportionate
to the threat. However, the jury will appreciate the terror felt by a person
facing a threat of death or serious injury. The defendant is not expected to
behave in an especially heroic way, but simply in a reasonable way.
What characteristics of the defendant should be attributed to the
reasonable person?
R v Bowen (1996)
Details of Case -> Bowen was convicted of obtaining services by deception. He
accepted the key facts alleged by the prosecution but claimed that he had
acted as he did only because two men had accosted him in a pub and
threatened that he and his family would be petrol-bombed if he did not assist
in the plan. He was also told that his family would be attacked if he sought the
assistance of the police. There was some evidence that he had an IQ of 68
(which would be in the lowest 2% of the population) and unusually suggestible.
The question was whether the jury should have been directed to consider the
response to the threat of a reasonable person with an IQ of 68.
Held ->The appeal was dismissed. The low IQ of the defendant could not be
said to be the reason why he performed the act.
Which characteristics can be taken into account?
Bowen provides a reasonably clear description of how a trial judge should
decide whether a characteristic can be ascribed to the reasonable person. It
must be shown:
(i) The characteristic provides a reason for failing to live up to the
standards of the reasonable person. Hence, low IQ was not relevant, but
post traumatic stress disorder may be. There is no reason why those with
low IQ should be less brave than those with higher IQ. Contract a person
suffering with post-traumatic stress disorder who does have a good
reason why they cannot be expected to be as brave as an ordinary
person.
(ii)The characteristic must not be self-induced (e.g. intoxication). One issue
yet to be resolved is whether Smith (Morgan) (2000) a case on

Defences IV: Duress

provocation, is to be applied in relation to duress. If so, this would mean
that the jury could take into account any characteristic that a jury
believed to be relevant.
What purposes are characteristics relevant?
Potentially relevant characteristics are pregnancy and physical disability. But
surely these characteristics do not affect the level of bravery that can be
demonstrated? What this may indicate is that characteristics may be ascribed
to the reasonable person in duress for 3 different reasons:
(i) To affect the level of firmness expected
(ii)To affect the ability of the defendant to escape from the threat. E.g.
physical disability
(iii) To affect the gravity of the threat.(e.g. pregnancy)
Although the CA did not say so explicitly it appears that characteristics may be
relevant in any of these three ways. In Bowen, the CA, perhaps, did not give as
much consideration as it might have to the question whether the defendants
low IQ led him to think the threat was more serious than it was or to fail to see
a way of escaping from the threat.
The defendant must take any reasonable opportunity to escape from
the threat
The defendant must have taken any opportunity to escape from the threat that
a reasonable person would have taken, for example, by seeking police
protection.
Heath (2000)
Details of Case -> The defendant was threatened with violence unless he
helped transport drugs in a few days time.
Held -> He was told that he could not rely on duress as a defence because he
could have escaped from the threat by seeking assistance from the police or
moving to relatives in Scotland.
Imminence or Immediacy?
The threat must be of harm in the near future.
There are some old cases which imply that imminence is enough. However, the
law has since tightened.
Hudson and Taylor [1971]
H and T were witnesses to a crime and were being tried for perjury and lying
to the courts. They said they had been threatened. The people they had
witnessed said if you did not lie about who they saw they would be hurt. When
they were giving evidence, one of the members of the gang was sitting in the
court staring at them. The threat could not be carried out in courtroom so
could not be described as immediate death or serious injury but the CA said
imminence was sufficient.
It is essential to the defence of duress that the threat shall be effective at the
moment when the crime is committed. The threat must be a present threat in

Defences IV: Duress

the sense that it is effective to neutralise the will of the accused and at that
timeIn the present case the threatswere likely to be no less compelling
because their execution could not be effected in the courtroom, if they could be
carried out in the streets of Salford the same night.
Abdul Hussein [1999]
Details of Case ->The appellants were Shiite Muslims who had offended Sadam
Hussains Iraqi regime. They had escaped to Sudan, but had overstayed their
visas and were threatened with being returned to Iraq. Members of their
families in Iraq had been killed or tortured. They hijacked an aeroplane and
eventually arrived in England. They were charged with and convicted of
hijacking. One issue on appeal was whether duress was only available if the
appellants were facing an imminent threat.
Held -> The CA stressed that the threat of death or serious injury had to be
imminent. This did not mean that the harm had to be immediate, but it did
have to be something due in the very near future.
Hasan,
(Lord Bingham) It shouldbe made clear to juries that if the retribution
threatened against the defendant or his family or a person for whom he
reasonably feels responsible is not such as he reasonably expects 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.
The defendant must have good cause to believe that the threat could be
carried out.
The Graham direction makes it clear that the defendant must have good cause
to believe that the threat could be carried out.
The Threats Must not have Been Courted
The defendant must not have put himself in a position in which he could have
been threatened this way. If defendants put themselves into a position where
the threat could be made against them then the defence of duress is not
available. So the defence is not available if the defendant associates with
criminals in circumstances in which he knows or ought to know that he could
become subject to compulsion to commit a crime. E.g. the defence of duress
could not give an excuse to people who join gangs knowing the sort of criminal
activities that take place.
Hasan
Details of Case -> The defendant Hasan, sought to rely on a defence of duress
in response to a charge of burglary. Hasan was the driver and minder of E. E ran

Defences IV: Duress

an escort agency but then E took up with somebody else P. P was known as a violent drug dealer. P
persuaded E to sack Hasan. Hasan kept in contact with P and continued to speak and have contact.
It was alleged that he had entered the victims house, claiming that the victim
had telephoned for a prostitute. He produced a knife and took 4000 from a
safe. Hasan claimed that he had only done this in response to threats of
violence, from P whom he worked and who had a reputation as a violent man.
One issue considered by the HL concerned the admissibility of various
statements by the defendants. The issue of concern to substantive criminal law
was the direction of the judge that the defendant could not rely on threats
because he had associated with the threatener and therefore put himself in a
position in which he knew that he was likely to be subjected to threats. The
defendant was convicted and appealed.
The policy of the law must be to discourage association with known criminals,
and it should be slow to excuse the criminal conduct of those who do so. If a
person voluntarily becomes or remains associated with others engaged in
criminal activity in a situation where he knows of ought reasonably to know
that he may be the subject of compulsion by them or their associates, he
cannot rely on the defence of duress
You dont need to know that you would be compelled to commit crimes; just need to know or
reasonably would know that you might be threatened
Baroness Hail commentated that this was too harsh of a criteria. She was worried about the rights of
women who stay in violent relationships.
Internal duress cannot be relied upon.
R v Quayle (2005)
Details of Case -> Quayle and two others were suffering various illnesses
which caused them severe pain. They were arrested after it was found that
they were growing cannabis for personal use. They were charged with
possession of cannabis contrary to the Misuse of Drugs Act 1971. The
defendants raised the defence of necessity. This was based on the argument
that the use of cannabis was necessary to avoid serious injury and pain. Their
defence was not left to the jury by the trial judge and an appeal was made to
the CA.
Held -> Appeal dismissed. Defendants cannot rely on threats that come from
within themselves.
Threat related to the commission of a specific crime
Cole [1994]
A man was threatened with violence if he did not repay some debts. To get the
money to pay off the debt he robbed building societies. He attempted to bring
the defence of duress. Although he was threatened, he did not have to pay the
money back in an illegal way.

DURESS OF CIRCUMSTANCES

Defences IV: Duress

In some cases where the defendant does the lesser of two evils, he will be able
to rely on the defence of necessity. Duress of circumstance provides a defence
where the defendant reasonably believes that the circumstances are such that
unless he commits a crime he or another will suffer death or serious injury and
that a reasonable person in the same situations would have committed the
crime. Being faced with the threat of death which the defendant avoids by
driving through a red light would fall under the defence of duress of
circumstances. It would also be said to be the lesser of two evils.
However, duress of circumstances is in some sense narrower and in some
sense wider than necessity.
Duress of circumstance is narrower in that duress of circumstance is not
available in order to avoid a threat less than death or GBH, although
necessity if recognised may provide a defence if the crime committed
involved less harm than that threatened.
Duress of circumstances is wider than a necessity defence would be, in
that it covers the situation where the defendant reasonably believed
there to be a threat of death or serious injury even if there was in fact no
such threat. A necessity defence would not cover such a situation.
Further, if the defendant was threatened with GBH unless he caused
GBH, although the two kinds of harm may be the same and so he or she
may not be able to rely on necessity, he may be able to rely on duress of
circumstances and argue that a reasonable person would have given in
to that threat.
R v Conway [1988]
C was sitting in his car with T. A few weeks before T had been attacked. Two
men walked up to Cs car. C thought they were going to attack T, and so
recklessly drove away. It just happened that they were police. C was charged
with reckless driving. He argued the defence of duress of circumstance or
necessity.
The test of duress of circumstance is subjective, and has the same
requirements as duress of threats. The requirement had to relate to death or
serious injury. A reasonable person would have done the same thing.
Martin [1989]
Details of Case -> Ms son was late for work. If he was late for work again it was likely he was
going to be fired. M was disqualified from driving. His wife said to him you have to drive your son
to work. He said he couldnt as he was disqualified. She said if you dont I will kill myself.
Held -> It was accepted in CA that there was a duress of circumstance. English law does in extreme
circumstances recognise the defence of necessity.
English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this
defence arises as duress, that is pressure on the accuseds will from the wrongful threats or violence
of another. Equally however, it can arise from objective angers threatening the accused or others.
Arising thus it is conveniently called duress of circumstances.
They then determined that the questions to be asked were the analogues to those asked in Graham.
Graham [1982]

Defences IV: Duress

Lord Lane 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
reasonablenessThe law requires people to have the self-control reasonably to
be expected of an ordinary citizen in his situation. It should likewise require
him to have the steadfastness reasonably to be expected of the ordinary citizen
in his situationThe correct approach on the facts of this case would have
been as follows: (1) was he defendant, or may he have been, impelled to act as
he id because, as a result what he reasonably believed King had said or done,
he had good cause to fear that if he did not so act King would kill him or (if this
is to be added) cause him serious physical injury?. (2) If so, have the
prosecution made the jury sure that a sober person of reasonable firmness,
sharing the characteristics of the defendant, would not have responded to
whatever he reasonably believed King said or did by taking part in the killing?
The fact that a defendants will to rest has been eroded by the voluntary
consumption of drink or drugs is not relevant to this first test.
Pommell [1995]
All the early cases of duress of circumstances related to driving, but in Pummel the CA said duress
of circumstance is applicable to all offences which duress of threats is applicable.
Details of Case -> P was found early in the morning with a large gun with him in bed. The police
asked why there was an unlicensed gun in bed. He said a funny thing happened last night. He had
bumped into a man with this gun. He said he was going to kill someone. Subsequently P said he took
the gun off him to give to his brother to hand in the next morning. Although he did not have a
license, he felt it was necessary to take the gun off him.
Held -> CA accepted that he could rely on the duress of circumstances..
Commentary -> Interestingly, the threat was no longer operating. Once the gun had been taken off
the man, there was no further threat. There was reasonable time afterwards to take the gun to the
police.
Pommel case number 2 -> Evidence case relating to whether or not you could omit evidence where
someone relied on a plea with regards to evidence
Details of Case -> Pommel was found in bed with a gun again.
Held -> CA said they could not give evidence of before