Duress

29.02.2012

Lesson Objectives:

All learners will be able to:• To be able to define duress.• Match case names to facts.Most learners will be able to:• To be able to list 4 cases and apply the case-law in

regard to duress as a defence.Some learners will be able to:• To be able to list 7 cases and apply it in regard to

duress as a defence. • To be able to apply duress to problem questions.

DURESS

What does this term mean to you?In what situations do you think duress can arise?

The issue of duress arises where the defendant is threatened that he must commit a criminal

offence or suffer physical injury or injury to his family. This type of duress is often referred to

as duress by threats.

Attorney-General v Whelan [1934] Murnaghan J (Irish CCA) – Duress is a defence because ‘"… threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal.“

Duress is a excusatory defence

A defendant who commits a criminal offence under duress is excused from liability because he is not held to be blameworthy enough to warrant criminal sanction. It is a complete defence. Thus, if pleaded successfully, the defendant is acquitted. The defendant bears a evidential burden in relation to duress; he must adduce some evidence of duress in order to make the issue a live one. The burden of proof is on the prosecution to disprove duress beyond reasonable doubt.

Which offences is duress a defence to?

Duress is a general defence – it is available in respect of most offences. However, duress is no defence to charges of treason, murder (Howe [1987]) or attempted murder (Gotts [1992]). Duress is no defence to a person who is charged with murder as the principal (Abbot v R [1977]) or as a secondary party (Howe).

The law places importance on the sanctity of life and protection of the lives of individuals. Therefore, it does not excuse a defendant from committing murder or attempting to do so, even where he was under severe pressure of threats to his own life or those of his family.

Howe [1987] AC 417

The defendants participated in one killing as secondary parties , but were the principals in another killing. They claimed that they were acting out of fear that they would be seriously harmed or killed by a man named Murray, who organised the killings. The defendants wished to please duress. The trial judge ruled that duress was a defence to secondary parties to murder, but no defence to principals of murder. The HOL overruled this stating duress was NO DEFENCE to murder, irrespective of if the person was principal in first degree or second degree.

Gotts [1992] 2 AC 412The defendant was charged with the attempted murder of his mother. He claimed that his father had threatened to shoot him unless he killed his mother, and wished to plead duress. The trial judge ruled that duress was not available to a charge of attempted murder. As a result of this ruling, the defendant pleaded guilty and appealed on the ground that the trial judge’s direction had been wrong. The HOL dismissed the appeal and confirmed there is no defence of duress to attempted murder.

While the mens rea for attempted murder is an intention to kill, a lesser intention to cause GBH is sufficient for a charge or murder. Lord Jauncey questioned whether there is ‘logic in affording the defence to one who intends to kill but fails, and denying it to on who mistakenly kills intending only to injure?’

Thus the rationale for concluding that a defendant charged with attempted murder cannot rely on duress, is because the defendant’s state of mind may indeed be more serious and inexcusable than that of a defendant charged with murder.

R v Graham [1982]

D was living with his wife and a homosexual man, King, who was D’s lover. King was a violent man who was jealous of D’s wife. He suggested that they kill her. King placed an electrical flex around the wife’s neck and told D to pull on the other end. He did so and the wife died. D was charged with murder and pleaded duress. He argued that he only acted out of fear of King. He was convicted and appealed. The CA upheld conviction because the threat made by King was not sufficiently grave to raise duress.

Lord Lane CJ gave the leading judgement and stated that the jury should consider the following two questions:

1. Whether or not the defendant was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger. (Subjective test)

2. Would a sober person of reasonable firmness sharing the defendant's characteristics have responded in the same way to the threats? (Objective test).

The subjective and objective elements are often referred to as ‘The Graham Test’.

The Graham Test

The subjective test - Immediate/imminent:R v Hudson and Taylor [1971] - two young girls who were

charged with perjury after they gave evidence in respect of an incident they had witnessed in a pub. Both defendants were called to give evidence against the man charged, X, but both failed to identify him in court. They argued that Hudson had been approached by X’s friends who threatened her with physical injury if they gave evidence. The trial judge ruled that duress was not available because the girls were protected by the police at the time. The Court of Appeal held the girls were not guilty of perjury, stating that it should have been left to the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the evidence – were the threats still imminent?

The Graham Test‘The reasonable person’ – objective test.R v Bowen – leading case; D was convicted of the offence of obtaining services

by deception. He was of low IQ, with a reading age of 7 years old, and was abnormally suggestible and vulnerable. The defendant claimed that he had been threatened by two men that they would throw a petrol bomb at his house unless he committed the offence. It was held that this not a relevant characteristic since it did not make those who had it less courageous or less able to withstand threats and pressure than an ordinary person.

The court of appeal held that the only relevant characteristics were the age, and possibly the sex of the defendant, pregnancy (where the threat of harm is to the unborn) serious physical disability, and a clinically recognised psychiatric condition.

Therefore it was held that the question could not be ‘Would a sober person of reasonable firmness sharing the defendant's ‘low IQ’ have responded in the same way to the threats?’. Low IQ was not a relevant characteristic.

Violent gangsThe defence of duress is not available to persons who commit crimes as a consequence of threats from members of violent gangs, which they have voluntarily joined.

R v Sharp [1987] - D joined a gang who carried out a series of armed robberies at sub-post offices. In the last of these robberies the sub postmaster was shot and killed by X.

Lord Lane CJ;• “…the defence of duress was not available to a person who voluntarily

and with knowledge of its nature joined a criminal organisation or gang, which he knew might bring pressure on him to commit an offence, and was an active member when he was put under such pressure.”

Gangs

R v Shepherd [1987] – D voluntarily joined a gang of shoplifters. They were not a violent gang and the defendant did not know them to se violent methods. However, the defendant was threatened with violence, as a result of which he committed burglary. The trial judge followed previous authorities and refused to leave duress to the jury. On appeal, the Court of Appeal ordered a retrial and held that duress should have been available to the defendant on this case. The court distinguished on the grounds that the gang the defendant had joined was not known to use violence. Held not guilty.

R v Hasan [2005]

The defendant worked as a driver for a woman who was involved in prostitution. The woman’s boyfriend, S, was a drug dealer and a violent man. The defendant was charged with aggravated burglary. He claimed that he had acted under duress having been coerced into committing the burglary by S. The trial judge directed the jury that the defence of duress would not be available to the defendant if they found that by associating himself with S, he had voluntarily put himself in a position in which he knew that he was likely to be subjected to threats. The HOL confirmed this.

Activity

Having gone through the definitions of duress, the tests and the case-law, identify the

elements required for a defence of duress. There are 7 points.

(5 mins)

The elements required for a defence of duress:

1. A threat from another person2. Of serious personal violence3. Against the accused or another person4. Instructing the accused to commit a crime5. Which causes the accused to commit any crime but

not murder or attempted murder6. Where another person of reasonable firmness would

have acted the same7. And the threat was not from a fellow member of a

violent gang.

Problem questionMildred and John, two law students, decide to go to the SU Bar for a few drinks after their finals. After several drinks, Mildred confesses to John that she cheated in her criminal law exam. John threatens to tell their lecturer unless Mildred steals the takings from behind the bar. Mildred refuses at first, but John makes further threats to reveal Mildred’s homosexual inclinations on Facebook and to send someone round to beat her up. Frightened that John will carry out his threats, Mildred steals £100 from behind the bar. On her way out of the SU Bar, Mildred is approached by Bert, a security guard, who has witnessed the theft. Fearing that John has sent Bert to find Mildred, she strikes Bert on the head with her textbook, causing him serious injury.

Discuss whether Mildred has any defences. Use case-law to support your answer.