Duress

This defence may occur when someone commits and offence because they are effectively forced into it. This could be because someone else is using force against them or threatening to use force against them or a loved one.

The defence can be used for all crimes except murder and attempted murder.

Murder - R v Howe (1987).

Attempted murder - R v Gotts (1992).

Comes from the case of R v Graham (1982).

1) Was the defendant impelled to act as he did because he reasonable believed because of what the other had said or done, he had good cause to fear that, if he did not act as he did, death or serious injury would result?

2) Would a sober person of reasonable firmness, sharing the same characteristics of the defendant have acted in the same way?

If the defendant has voluntarily taken part in a criminal activity and then forced to take part in activities of which he or she does not approve the defence will not be available.

This rule was shown in Rv Sharp (1987) when D was in a criminal gang.

Subjective test:

• The cirumstances and D's reaction.
• The threat must be really serious.
• R v Valderrama-Vega (1985).

Objective test:

• Would a reasonable person react the same way?
• The following characteristics can be taken into account:
  • Age.
  • Physical disability.
  • Pregnancy.
  • Gender.
  • Mental disability.

R v Howe (1987):

• Illustrates that duress cannot be used for murder.

R v Gotts (1992):

• Duress cannot be used for attempted murder.

R v Graham (1982):

• Created two part test for duress.

R v Valderrama-Vega (1985):

• The threat must be really serious.

R v Cole (1994):

• The threat must be connected to the offence committed.

R v Hudson and Taylor (1971):

• The immediacy of the threat and possible escape.

R v Abdul-Hussain (1999):

• Must be imminent peril of death or serious injury.
• Peril must operate on the D's mind at the time of the act.
• Carrying out the threat doesn't need to be immediate.

R v Bowen (1996):

• Low IQ and vulnerability to threats is not taken into account for the objective test.

R v Sharp (1987):

• If the D is part of a criminal gang, duress is unavailable.

R v Hasan (2005):

• D usually cannot get duress if they are associated with violent criminals, but this case was an exception.

The circumstances force the defendant to commit the offence. There is no specific worded threat but the D still feels forced to act.

The defence came from the case of R v Willer (1986).

R v Willer (1986):

• Defined duress of circumstances.

R v Conway (1988):

• Clarified that the defence is only available for the same circumstances as duress itself - fear of death or personal injury.

R v Martin (1989):

• Threat of suicide is still a threat of death.

DPP v Bell (1992):

• D was forced to drunk drive, but only drove a short way that was necessary to escape.

R v Pommell (1995):

• Duress cannot be used for preventative measures.