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Duress
- This is relevant where D has committed the offence because he has been
threatened with death or serious injury. D has an excuse because he has been
effectively forced to commit the offence.
- If D is told to committ a specific offence 'or else' it is known as duress by threats - for
example if D is told she will be killed unless she acts as a getaway driver for robbery. If D
decides which offence to commit because of the surrounding circumstances - duress of
circumstances.
- It is a general defence
to all crimes except
murder, attempted
murder and some
forms of treason
- HASAN (2005) elements of
duress by threats are:
- 1) there must be a threat of death or
serious injury (confirming GRAHAM 1982)
- 2) that threat must be made to D or
his immediate family or someone else
to him or someone or whom D would
reasonably regard himself responsible
for
- 3) D must reasonably believe that he
had good cause for fear of death or
serious injury.
- 4) his response must be one
which might be expected of a
sober person of reasonable
firmness
- 5) there must be no
reasonable opportunity to
escape the threat
- 6) D cannot rely on
threats to which he
has voluntarily laid
himself open
- 1) there must be a threat of death or
serious injury (confirming GRAHAM 1982)
- 5. Was there a threat of death or serious injury?
- It is probable that a threat to
cause serious psychiatric injury
could amount to duress: BAKER
v WILKINS (1997)
- It is probable that a threat to
cause serious psychiatric injury
could amount to duress: BAKER
v WILKINS (1997)
- 6) Was the threat made to D or someone
for whom D would reasonably regard
himself responsible?
- In WRIGHT (2000) threats against
D's boyfriend sufficed. In
HASAN it5 was said that
persons for whom D would
reasonably regard himself as
responsible would cover those
who could be injured by a bomb
unless D committed the relevant
crime.
- In WRIGHT (2000) threats against
D's boyfriend sufficed. In
HASAN it5 was said that
persons for whom D would
reasonably regard himself as
responsible would cover those
who could be injured by a bomb
unless D committed the relevant
crime.
- 7) Did D reasonably
believe that he had good
cause to fear death or
serious injury and was his
response one which might
be expected of a sober
person of reasonable
firmness?
- It was held in BOWEN (1996) that when deciding if D reacted
reasonably they could take into account the following characteristics
- D's age or D's sex
- D was pregnant
- if D had a serious physical disability
- if D had a recognised
mental illness (eg post
traumatic stress
disorder and serve
battered woman's
syndrome)
- D's age or D's sex
- It was held in BOWEN (1996) that when deciding if D reacted
reasonably they could take into account the following characteristics
- Was the crime nominated by the duressor?
- SOmeone must have said "Commit this crime or else"
- In COLE (1994) D had been threatened because he owed
moneuy, he then committed robbery in order to pay off
the debt. He said he onlt did this because he was in
fear for his life and that of his girlfriend and his child.
The defence of duress was rejected by the CoA
because he had not been under a threat to commit
robbery.
- In COLE (1994) D had been threatened because he owed
moneuy, he then committed robbery in order to pay off
the debt. He said he onlt did this because he was in
fear for his life and that of his girlfriend and his child.
The defence of duress was rejected by the CoA
because he had not been under a threat to commit
robbery.
- SOmeone must have said "Commit this crime or else"
- Was there a reasonable opportunity to escape the threat?
- The threat need not be capable of
being carried out immediately as long
as it was still effective at the time D
performs the crime - i.e D must
reasonably believe that the threat could
be carried out immediately: HASAN
- The defence will not be available where D had a
reasonable opportunity to contract the police or escape
- In GILL (1963) D claimed that he and his wife had been threatened unless he
stole a lorry. He could not rely on the defence of duress as threatened as
there was a period of time during which he was left alone and so could
reasonably have raised the alarm.
- In GILL (1963) D claimed that he and his wife had been threatened unless he
stole a lorry. He could not rely on the defence of duress as threatened as
there was a period of time during which he was left alone and so could
reasonably have raised the alarm.
- When the threat is withdrawn or bvecomes ineffective, D must stop
committing the crime as soon as he reasonably can. IF, for example
having consumed excess alcohol D is threatened and drives off in fear
of his life, he commits a drink driving offence only if the prosecution can
prove that he continued to drive after the terror ceased.
- The threat need not be capable of
being carried out immediately as long
as it was still effective at the time D
performs the crime - i.e D must
reasonably believe that the threat could
be carried out immediately: HASAN
- Has D voluntarily laid himself open to the threats?
- According to HASAN, the defence
of duress fails where D voluntarily
assosciates with criminals and he
foresaw or ought reasonably to
have forseen the risk of being
forced to commit any crime by
threats of violence.
- According to HASAN, the defence
of duress fails where D voluntarily
assosciates with criminals and he
foresaw or ought reasonably to
have forseen the risk of being
forced to commit any crime by
threats of violence.
- Duress of circumstances
- It is only since the mid 1980's that the courts
have recognised this defence.
- The same principles apply to duress of
circumstances as to duress by treats.
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