Duress by Threats
Duress is where a person was forced by someone else to break the law under an immediate threat of serious bodily harm befalling himself or someone else. If duress is established it is a complete defence resulting in an acquittal.
The Threat
The threat will usually be made to the defendant but cases have also included the defendant’s:
- Wife and children (Ortiz);
- Mother (R v K); and
- Girlfriend (Hurley).
In Shayler, the Court of Appeal stated that the threats must be directed towards the defendant or a person for whom he has responsibility or for whom the situation makes him responsible, eg, where the threat is made to set off a bomb unless the defendant performs the unlawful act.
The threats must be directed at the commission of a particular offence. In R v Cole, the defendant was charged with committing a number of robberies at building societies and stated that he had acted under duress. He had owed money to money-lenders who had threatened him, his girlfriend, and their child with violence if the money was not repaid. The trial judge ruled that the facts did not give rise to the defence as the threats had not been directed at the commission of a particular offence, but to the repayment of the debt. The defendant’s appeal against conviction was dismissed. It was held that the defence of duress by threats was only made out where the threatener nominated the crime to be committed by the defendant. In the present case the threatener had indicated that he wanted the defendant to repay the debt, an action that, if carried out, would not necessarily involve the commission of an offence.
The Test for Duress
The two-stage test for duress is contained in R v Graham, which was subsequently approved by the House of Lords in R v Howe. The jury should consider:
- 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.
- Would a sober person of reasonable firmness sharing the defendant’s characteristics have responded in the same way to the threats?
The jury should be directed to disregard any evidence of the defendant’s intoxicated state when assessing whether he acted under duress, although he may be permitted to raise it as a separate defence in its own right.
Immediacy of the Threat
The threat must be “immediate” or “imminent” in the sense that it is operating upon the accused at the time that the crime was committed. If a person under duress is able to obtain the protection of the law, s/he must do so. When the threat has been withdrawn or becomes ineffective, the person must stop committing the crime as soon as s/he reasonably can. In R v Hudson & Taylor, it was held that if the defendant has an opportunity to seek help but fears that police protection will be ineffective, the matter may still be left to the jury. However, in Hasan [2005] UKHL 22 (see below for facts), Lord Bingham felt that this was too favourable to the defendants and stated that it should be 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.”
Violent Gangs and Persons
The 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. A defendant who joins a criminal association which could force him to commit crimes can be blamed for his actions: R v Sharp.
However, the defence is not automatically unavailable because the
duress comes from a criminal organisation which the defendant has
joined. It depends on the nature of the organisation and the
defendant’s knowledge of it. If s/he was unaware of any
propensity to violence, the defence may be available. The
court so held in:
R v Shepherd.
The principle in R v Sharp was extended by the Court of Appeal in R v Ali to associations with a violent person. This was endorsed by the House of Lords in Hasan.
Limitations
Duress is considered to be a general defence in criminal law, but there are a number of offences in relation to which duress cannot be raised as a defence:
- Murder (R v Howe); and
- Attempted Murder (R v Gotts).