Duress occurs where the defendant is forced to perform the criminal act by someone else. Duress is now split into two parts: duress by threats, such as is explained above, and also duress of circumstances. The courts tend to discuss duress alongside the idea of necessity, and therefore some of the cases seem to have little to do with duress! Originally, the only defence was duress by threats as the law took the view that, because of the level of threat compared to the crime, the defendant’s act became one that, whilst voluntary, was not one that he should be held responsible for. Duress is a defence available to all crimes except murder; therefore it is available to all crimes within the AQA specification for this unit.
1.Available for all offences except murder, attempted murder and treason
2.D must be threatened with serious injury or death
3.Cant use if can escape
4.Cant use if threat not imminent
5.Cant use if D helps to create threat
6.Results in acquittal
The test for duress can be stated:
1 Was the defendant impelled to act as he did because he feared death or serious physical injury?
2 If so, did he respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done?
This test comes from the case of Graham (1982). In that case, the defendant was the victim’s husband. He was a practising homosexual who lived with his wife and another homosexual called King. King was known to be violent. Previously, King had tipped the defendant and his wife off a settee because they were embracing and he was jealous. He had also broken another woman’s ribs. On 27 June 1980, the day before the killing, King attacked the wife with a knife. The defendant intervened, and cut his finger when he tried to grab the knife.
As a result of this incident the wife left. King then suggested getting rid of the wife once and for all. The two of them hatched a plan. The defendant telephoned his wife in the small hours, told her falsely that he had cut his wrists and asked her to come home at once. When the wife arrived, she knelt down beside the defendant to see how he was. King had the flex from a coffee percolator in his hands. He attempted unsuccessfully to put it round the wife’s neck while she was kneeling. The appellant and his wife then both got up and King said: ‘What’s it feel like to know that you are going to die, Betty?’ That remark was repeated. King then put the flex round the wife’s neck and pulled it tight, hauling her off her feet onto his back as if she were a sack of coals. She put her hands up to the flex at her neck, whereupon King told the defendant to cut her fingers away. The appellant said in evidence that he picked up a knife but could not bring himself to use it. King thereupon put the wife on the floor, still holding the flex. He told the defendant to take hold of one end of it. The defendant said in evidence that he did so. He added that it was only in fear of King that he complied with the order. He said that, in any event, the plug at the end of the flex which he was holding came off as he exerted pressure on it. Thereafter he helped King to dispose of her body by wrapping it up, carrying her out of the flat and dumping it over an embankment.
There are a number of aspects of this defence to consider:
- The defence cant be used for murder or attempted murder.
- The nature of the threat.
- The threat must be made in connection with the offence committed.
- The characteristics of the defendant.
- The effect of intoxication.
- The immediacy of the threat and possible escape.
- Self-induced duress.
The defence cant be used for murder or attempted murder
The current rule is that the defence of duress cannot be used for the crime of murder or attempted murder.
For murder this was decided by the House of Lords in the case of Howe (1987). Howe acting under duress, took part with others in two separate murders, and on a third occasion the intended victim escaped. He was charged with the murders of all three victims as in English law anybody who takes even a small role in a crime is as guilty as the main perpetrators.
The House of Lords decided to overrule the earlier case of Lynch (1975) where Lynch had been forced under duress to drive a getaway vehicle for the IRA whilst the terrorist organisation killed a protestant. In Lynch the House of Lords had decided to allow an exception to the rule that duress could not be used for murder, in situations like Lynch, where he was so remotely connected to the killing that his role was really incidental.
However Howe overruled this precedent so cases like Lynch would no longer be allowed a defence of duress. Lord Hailsham said this was because:
‘it not good morals, good policy or good law to suggest..that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own’
In the case of Gotts (1992), an attempted murder of a boy’s mother, under duress from his father, the Court of Appeal applied the same stringent rules, and the defence was not allowed.
This a very harsh approach, particularly as the Graham test is largely objective and doesn’t allow for personal characteristics such as the maturity of a D to be considered by the jury, as confirmed in the case of Wilson (2007), where a 13 year old boy was not allowed to raise the defence even though he was more impressionable to threats from his father.
The nature of the threat
The Graham test states ‘feared death or serious physical injury’.
Thus, the threats must be as to serious physical harm however minor the offence committed. Thus, ‘I will kill you if you do not break Emma’s pencil’, could give rise to a defence of duress to a charge of criminal damage. ‘I will tap you on the hand with my pen if you do not break Emma’s pencil’ will not give rise to the defence against a charge of criminal damage arising from breaking the pencil. There is no defence if the threat is to damage or destroy property, although there can be a defence of self-defence relating to this.
What exactly amounts to serious physical injury is unclear. Certainly, psychological harm will not suffice as in Baker and Wilkins (1997). Similarly, in the case of Quayle and others: Attorney-General’s Reference (No. 2 of 2004), a case about the self-medicating use of cannabis, it was suggested that the threat of severe pain would be insufficient.
Threats which do not form part of the defence are merely mitigating factors that come into play when sentence is being passed. These include threats to expose a sexual affair or a person’s particular sexual practices. These aspects are to be disregarded in any consideration of duress even when they appear to be increasing the pressure caused by the threat. This can be seen from the case of Valderrama-Vega (1985), where a cocaine smuggler for Colombian drug dealers had been threatened with death or serious injury to himself and his family if he did not take part in importing drugs. He was also under financial pressure and had been threatened with disclosure of his homosexuality. However, a range of threats can be considered by the jury to accumulate to one that amounts to serious physical injury or death. So in this case the judge should have allowed the jury to consider all the threats including those regarding homosexuality. D was therefore acquitted.
It should also be noted from Valderrama-Vega (1985) that the threat can be made to a member of his immediate family. The same applies in the case of a person for whose safety he would reasonably regard himself as responsible. This can be seen in the specimen directions to juries set out by the Judicial Studies Board which were specifically approved in Hasan (2005).
The defendant’s belief in the threats can be a mistaken belief (Martin (DP) 2000) but the belief must a reasonable one and regarded as genuine (Hasan (2005)). If this is the case mistaken beliefs as to threats of death or serious injury can be considered by the jury.
The threat must be made in connection with the offence committed
The defence can only be relied on where there is a connection between the threats made to the accused and the offence committed in response to the threats. Thus, it is no defence to say I was threatened with death if I did not burn down a factory to a charge of breaking a totally unconnected person’s arm. In the case of Cole (1994), the defendant robbed several building societies. He claimed moneylenders had threatened to harm him and his girlfriend if he did not repay money he had borrowed from them. The threat related to consequences if the money was not repaid, not if he did not commit the armed robberies.
It should be noted that the case does not establish the closeness of the connection required. It could be that a demand to rob a bank would still be too unconnected, but to take part in a robbery on Tuesday at HSBC, Leyburn, to get the money for the debt is probably close enough.
The characteristics of the defendant
The second leg of the test, ‘If so, did he respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done?’, requiring a consideration of the effect of the threats on the reasonable man sharing the characteristics of the defendant.
The key case on characteristics with respect to duress is Bowen (1996). Here, the defendant pleaded the defence of duress to charges of obtaining services by deception. On some forty occasions the appellant had visited shops selling electrical goods and obtained a large number of them by applying for ‘instant credit’. On all occasions he had paid a proportion
of the cost by way of deposit. He had not completed payment of any of the goods concerned. On all occasions he had given his correct name and bank details. On some occasions he had given his correct address; on others not. The total amount of credit obtained was about £20,000.
After some initial prevarication he told the officers that he had obtained a large number of goods that he subsequently sold and that, although he had made some payments for them, he stopped paying the finance company. He said that he had stopped paying for the credit because he could see little point in doing so when it was so easy, and he had sold the goods as a way of making a ‘quick buck’. He said that he had not realised that what he was doing was a criminal offence; he thought he was just getting himself into debt.
He claimed that throughout the period he had acted under duress. He said that two men had accosted him in a public house, and he had been threatened by them that he and his family would be petrol-bombed if he did not obtain goods for them. On each occasion he was told what goods the men required. He was told that if he went to the police his family would be attacked.
Evidence was given by a psychologist that he had a low IQ (68) and was abnormally suggestible. The court decided that the low IQ had no bearing on how the defendant was able to respond to the threat. They said, ‘we do not see how low IQ, short of mental impairment or mental defectiveness, can be said to be a characteristic that makes those who have it less courageous and less able to withstand threats and pressure’.
What is more important in the case is that the court set out the characteristics that would be relevant.
This means that the following are characteristics which can be put forward:
- Age and sex.
- Physical health or disability.
- The defendant may be in a category of persons whom the jury may think less able to resist pressure than people not within that category.
- Psychiatric evidence may be admissible to show that the accused is suffering from some mental illness, mental impairment or recognised psychiatric condition provided persons generally suffering from such a condition may be more susceptible to pressure and threats.
This also means that the following are characteristics which cannot be put forward:
- The mere fact that the accused is more pliable, vulnerable, timid or susceptible to threats than a normal person.
- Characteristics which may be relevant in considering provocation, because they relate to the nature of the provocation itself will not necessarily be relevant in cases of duress unless they make the person more susceptible to threats.
- Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing.
The effect of intoxication
It would appear from the previous paragraph that intoxication is not relevant to the defence, but, as we have seen, may be a defence in itself. If the intoxication is involuntary, then it may be that the defence can be affected by the intoxication as the extract from Bowen (1996) only refers to self-induced abuse. Remember the second element of the Graham test specifically states a “sober and reasonable person”, not a drunk one.
The immediacy of the threat and possible escape
The defendant can only successfully plead the defence of duress where the threat was operating on his mind at the time and he feared death or serious harm would follow immediately if he did not commit the crime. Immediate therefore seems to mean acting on the mind of the D to such an extent at the time of the crime that a reasonable person couldn’t resist the threat. The classic definition is taken from the case of Whelan (1934) which said duress can be a defence where,
‘Threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as justification for acts which otherwise would be criminal’
In Hudson and Taylor (1971), a fight took place in a Salford public house between two men with the result that one was charged with wounding the other. The defendants, aged 19 and 17, gave statements to the police and they were the principal prosecution witnesses at the trial but when called to give evidence they failed to identify the attacker resulting in an unjust acquittal. They were charged with perjury.
At their trial they admitted that the evidence which they had given was false but set up the defence of duress. The basis of the defence was that, shortly after the fight, Hudson had been approached by a group of men including a man called Farrell who had a reputation for violence and was warned that if she ‘told on Wright in court’ they would get her and cut her up. Hudson passed this warning to Taylor who said that she had also been warned by other girls to be careful or she would be hurt. They were frightened and decided to tell lies in court in order to avoid the consequences which might follow if they identified the attacker. Their resolve was strengthened when they arrived at court for the trial and saw that Farrell was in the gallery. The jury had to decide whether this was an immediate threat. Whilst the girls were safe in court, the fact that the person making the threat was in court and could follow them out was important. It was also shown that the defendants had little or no police protection offered or given.
However, this case has been disapproved in Hasan (2005), as the defendants had the opportunity to go to the police. It has also been seen in Abdul-Hussain (1999), a case about aircraft hijackers who were Shiite Muslims who had fled from Southern Iraq, and the persecution by Saddam Hussain, to Sudan, but had overstayed in Sudan and feared being returned to Iraq, tortured and executed. Despite the lack of immediacy of the threat, the court decided that the possibility of death could overbear their minds and therefore might be available to the defendant as a defence.
The court in Abdul Hussain outlined three questions to consider when deciding if the threat was imminent:
1.There must be imminent peril of death or serious injury
2.Peril must operate on D's mind at the time of committing the offence, so as to overbear his will - which is matter for jury
3.Execution of the threat does not have to happen straight away, i.e. immediately
It should be remembered that duress is an excuse so its existence does not necessarily result in a not guilty verdict; it will depend on the jury’s view. The defendant can always not commit the crime. The defendant is more concerned with avoiding implementation of the threat. A case where the defendant would be expected to contact the police and could not rely on duress was Gill (1963). Here, the defendant was told to steal his employer’s lorry and was threatened with violence if he failed to do so. Gill would not have had the defence because he had time to go to the police in between the threat and the commission of the crime. However, the more recent cases seem to have relaxed this rule a little.
Where the defendant voluntarily puts himself in a position in which he was likely to be subjected to threats made to persuade him to commit an offence, then the defence of duress is less likely to be available. This is consistent with other defences such as intoxication, where the voluntary nature of the defendant’s behaviour usually means he has no defence. This can occur where the defendant joins a criminal group likely to subject him to such threats, or gets involved with crime and thus with other criminals likely to subject him to such threats if he lets them down or came to owe them money. From the defendant’s point of view, the problem often arises when he wishes to end the association.
This can be seen in a number of cases. For example in Sharp (1987), in August 1984 the defendant and two others, both of whom were armed with sawn-off shotguns, held up a sub-post office in Hounslow. They wore wigs. One of the others threatened the wife of the postmaster, whereupon the postmaster himself pressed the alarm. All three then ran off to the getaway car empty-handed. One of the others tried to fire his gun in the air in order to discourage anyone who was minded to pursue them.
In September 1984 the sub-post office at Wraysbury, near Staines, was the subject of an attack by them. The others again carried loaded sawn- off shotguns. Sharp was responsible for locking the post office door after the three of them had entered. Unfortunately the postmaster was shot and killed. Sharp admitted that he had been invited to take part in these robberies and had willingly done so. He regarded one of the others as a ‘nutcase’. He did not wish any weapons to be used, or so he said. He claimed that he panicked when he saw the guns being loaded into the car, because he knew from the first robbery that the others were prepared to fire them. He wanted to pull out, but he lost his nerve and he carried on despite his wish to withdraw because one of the others pointed a gun at him and threatened to blow his head off if he did not carry on with the plan to rob the post office. The court did not allow the defence of duress because he had voluntarily got into the situation by his association with the other criminals.
The defendant does not have to join a gang as such; just association with the others can suffice. This is particularly likely when doing business with drug dealers as in the cases of Heath (2000) and Harmer (2000), although the later case of Hasan (2005) perhaps states the situation better. This can be said to be that a defendant could not plead duress when he had foreseen or ought to have foreseen that his voluntary association with a known criminal involved the risk of being subjected to any compulsion by acts of violence. This is not restricted to compulsion to commit crimes of the kind with which he was charged. The defendant loses the benefit of a defence based on duress if he ought reasonably to have foreseen the risk of coercion. A person voluntarily associating with known criminals should foresee the risk of future coercion. As a matter of policy, the law must discourage association with known criminals.
However in some situations joining a criminal gang can still allow a defence of duress. In the case of Shepherd (1987), D joined gang of shoplifters but decided not to take part. D was threatened with violence to continue. D was allowed defence of duress because he had tried to withdraw from the gang when the nature of the criminal acts became more serious.
In summary the courts require three questions to be asked when considering whether duress is self induced:
1.If D joins a criminal gang or associates with people which he knows are likely to be violent then there is no defence
2.If D puts himself in a position where he is likely to be subjected to threats of violence of actual violence then there can be no defence.
3.If D finds out that he is associating with a criminal gang or associate that is likely to subject him to threats of violence and does not try to disassociate themselves with the persons involved there can be no defence.
If neither of the two situations arises then D can still be allowed to raise the defence of duress.
Duress of Circumstances
Duress of circumstances differs from duress by threats in that in duress by threats the defendant claims he is forced to commit an offence, whereas in duress of circumstances the defendant believes he, or those with him (for example, in a car) would suffer death or serious injury if he did not escape by doing what he did. In this sense, it is a little like self- defence. Generally the threat comes from an outside source rather than a specific person, though this is not always the case.
1.D argues that he is forced to do criminal offence because of some surrounding circumstances.
3.Uses the Graham test as per duress of threats
3.Results in acquittal
In Martin (1989) Simon Brown J summarised the position as follows:
‘First ... duress ... can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances’.
Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions:
1 Was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result?
2 If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted.
If the answer to both those questions was ‘yes’, then the jury would acquit: the defence of necessity would have been established. This is the same as the Graham test in Duress of Threats.
The case of Martin (1989) involved a charge of driving whilst disqualified. His wife had suicidal tendencies and had attempted suicide on a number of occasions. Her son had overslept, was bound to be late for work, and was at risk of losing his job unless, so it was claimed, the defendant drove him to work. The defendant’s wife was distraught. She was shouting, screaming, banging her head against a wall and she was threatening suicide unless he drove the boy to work. The defence had a statement from a doctor which expressed the opinion that in view of her mental condition it is likely that Mrs Martin would have attempted suicide if her husband did not drive her son to work. The defendant believed that his wife would carry out that threat unless he did as she demanded. Despite his disqualification he therefore drove the boy to work. He was in fact stopped by the police within about a quarter of a mile of the house
From this case it can be seen that the test is very similar to that of duress by threats.
- There are a number of elements to consider:
- The objective nature of the threat.
- Reasonable and proportionate action.
- The nature of the test.
- Limits to the defence.
The objective nature of the threat
The fact that the threat must be seen objectively means that this is the view that a reasonable man – in other words the jury – would take. This is the same as in the defence of duress by threats and therefore requires consideration of the same characteristics of the defendant as we considered in the previous topic and the case of Bowen (1996).
Reasonable and proportionate action
This acts to limit the circumstances in which the defence may be pleaded. This is not just proportionate action, but action that would only be taken given the very serious nature of the threats made. This can be seen in the case of Conway (1989), where the defendant, having been attacked by two men whilst he was in a vehicle a fortnight previously, saw two men approaching his car. He drove off recklessly as, he claimed, he feared another attack. In fact, the two men were plain clothes policeman about to arrest a passenger in his car. The jury would then have to consider whether his behaviour was proportionate.
The nature of the test
The test is exactly the same as the test for duress by threats (same as Graham test), with the obvious changes:
1 Was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result?
2 If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?
An application of the test can be seen in the case of Rodger and Rose (1997). In that case, the defendants were serving terms of life imprisonment for murder. Their original tariff set by the trial judge, of 12 and 20 years respectively, had since been increased to 17 years and indeterminate respectively. They claimed they became angry and depressed and had begun to consider suicide. This, they claimed, prompted them to break out of prison. The defence was not allowed as the circumstances which caused the action were internal to themselves and not extraneous circumstances as in all the other cases.
Limits to the defence
The defence has the same limitations on it as duress by threats. This was specifically stated in the case of Pommell (1995), where the Court of Appeal made it clear that the defence was not just limited to driving offences. In that case, the police entered the defendant’s house at about 8.00am on 4 June 1993 to execute a search warrant. He was found lying in bed with a loaded gun in his right hand. He was asked if the gun was his and he replied, ‘I took it off a geezer who was going to do some people some damage with it’. In the same bedroom police officers found a bag containing ammunition. When interviewed he was asked to explain his possession of the gun, and he said:
‘Last night someone come round to see me, this guy by the name of Erroll, and he had it with him with the intention to go and shoot some people because they had killed his friend and he wanted to kill their girlfriends and relatives and kids, and I persuade him, I took it off him and told him that it’s not right to do that.’
The defendant went on to say that Erroll had called between 12.30am and 1.00am and, after he left, he took the gun upstairs and kept it from his girlfriend and took the bullets out of it. He then decided to wait until morning and decided to put the bullets back into it. He was lying in bed with the gun against his leg because, he said, he did not want his girlfriend to see it. He said that he was going to hand the gun to his brother so that he could hand it to the police because his brother gets on with the police and had handed in guns in the past.
The question then remains whether the jury would believe the story and excuse the defendant by finding him not guilty.