The Defence of Duress in Criminal Law

There exist two defences of duress: duress by threats and duress of circumstances. Duress of circumstances is the most recent development in criminal law and is closely linked to duress by threats and the defence of necessity. Duress by threat and duress of circumstances are largely governed by the same criteria thus many of the cases are authority for either type of duress. Where the defence of duress is successfully pleaded it absolves the defendant of all criminal liability. The rationale behind the defence of duress is that whilst the defendant clearly has the mens rea of the crime, in committing the crime, they are acting out of compulsion and are therefore not exercising freedom of choice. In this respect the defence of duress differs from most defences which seek to demonstrate the defendant lacked the mens rea for example,intoxication, insanity and mistake. The defence of duress also differs from the defences of self-defence and prevention of crime which perhaps provide a justification for committing a crime. Duress operates to provide an excuse for criminal behaviour. In this respect the defence of duress has often been described as a concession to human frailty. Whilst the defence of duress is a general defence, there are some limits on its application. In particular the defence of duress cannot be raised in crimes of murder, attempted murder or by those who participate in killing. Recent case law suggests a narrowing in its application.

Duress by threat

Duress by threat was defined in A-G v Whelan [1993] IEHC 1 Case summary as being available when the accused was told to commit an offence and was subject to:

“Threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance.”

It is for the jury to decide whether the threat was sufficiently serious to warrant the defence of duress which will be balanced against the seriousness of the offence. The elements of the defence were more recently stated by Lord Bingham in the House of Lords decision of R v Hasan [2005] 2 WLR 709:

R v Hasan [2005] 2 WLR 709 Case summary

Elements of the defence of duress by threat:

Specified crime

Immediate threat

Threat of death or serious injury

Threat of violence must be to the defendant or a person for whom he has responsibility

Threat must be so great as to overbear the ordinary powers of human resistance.

Specified crime

The threat must be accompanied by an order to commit a specified crime. It is not sufficient that the defendant has felt the need to commit a crime to meet a demand for money.

R v Cole 1994 Crim LR 582 Case summary

Threat of immediate death or serious injury

The immediacy requirement is not strictly applied:

R v Hudson & Taylor [1971] 2 QB 202 Case summary

See also (in relation to duress of circumstances):

R v Abdul–Hussein [1999] Crim LR 570 Case summary

However, statements in R v Hasan suggest that the courts should be more restrictive particularly where there is opportunity of evasive action and or obtaining police protection:

R v Hasan [2005] 2 WLR 709 Case summary

Threat of death or serious injury

Threats to reveal sensitive information alone are insufficient to raise the defence, but may be taken into account if accompanied by threats of death or serious personal violence:

R v Valderamma-Vega [1985] Crim LR 220 Case summary

Persons for whom the defendant has responsibility

The threat of violence must be to the defendant or a person for whom he has responsibility or persons for whom the situation makes him responsible:

R v Shayler [2001] EWCA Crim 1977 Case summary

This includes threats against family members:

R v Martin [1989] 88 Cr App R 343 Case summary

Passengers in a car:

R v Conway [1989] QB 290    Case summary
Whilst threatened suicide of another may be sufficient (R v Martin [1989] 88 Cr App R 343 Case summary) a person can not rely on their own suicidal tendency to constitute the threat of death:
R v Rodger & Rose [1998] 1 CAR 143    Case summary

The threat must be so great as to overbear the ordinary powers of human resistance.

The test established in R v Graham applies to determine whether the threat was so great as to overbear the ordinary powers of human resistance:

R v Graham [1982] 1 WLR 294 Case summary

The elements of the Graham test:

1. The defendant must have a reasonable belief in the circumstances;

2. This belief must have lead the defendant to have a good cause to fear death or serious injury would result if he did not comply; and

3. A sober person of reasonable firmness, sharing the characteristics of the defendant, might have acted as the defendant did.

All three elements are objective in nature.

The characteristics that may be taken into account were considered in:

R v Bowen [1997] 1 WLR 372 Case summary
R v Flatt [1996] Crim LR 576 Case summary

Limits on the defence

The defence of duress is not available:

1. For crimes of murder, attempted murder or for an accessory to murder

2. For crimes of treason

3. Where the defendant voluntarily, with knowledge of its nature, joined a violent criminal gang

4. Where the defendant voluntarily joined a terrorist organisation

5. Where the defendant became indebted to drug dealers

6. Where the defendant could reasonably have taken evasive action

Murder related offences

The defence of duress is not available to murder:

Abbott v The Queen 1977 AC 755 Case summary

Originally the defence was allowed for an accessory to murder:

DPP for NI v Lynch [1975] AC 653 Case summary

However, this was overruled in Howe & Bannister which also stated obiter that the defence of duress should not be available to attempted murder:

Howe & Bannister [1987] 2 WLR 568 Case summary Youtube clip

The obiter from R v Howe & Bannister was followed by the Court of Appeal in R v Gotts which held that the defence of duress was not available to attempted murder:

R v Gotts [1992] 2 AC 412 Case summary

Voluntarily joining a criminal organisation

Where the defendant voluntarily, with knowledge of its nature, joined a violent criminal gang they will be denied the defence:

R v Sharp 85 Cr App R 212 Case summary

The defence may be allowed where the criminal organisation is not known to be violent:

R v Shepherd (1988) 86 Cr App R 47 Case summary

Voluntary joining a terrorist organisation

A person who voluntarily joined a terrorist organisation will not be allowed the defence where they are subjected to threats:

R v Fitzpatrick [1977] NILR 20 Case summary

Indebtedness to drug dealers

Where the defendant became indebted to drug dealers and is subjected to threats if they do not commit an offence, they are taken to have put themself in the position and the defence of duress is denied:

R v Ali [1995] Crim LR 303 Case summary
R v Flatt [1996] Crim LR 576 Case summary

It was considered that the defendant must foresee the type of offence that he may be coerced into committing:

R v Baker and Ward [1999] 2 Cr App R 335 Case summary

However, this point was overruled by the House of Lords in R v Hasan:

R v Hasan [2005] 2 WLR 709 Case summary

Where the defendant could reasonably have taken evasive action

If the defendant could reasonably have obtained police protection or acted in some way to avoid the crime they would be expected to take that action rather than commit the crime. The defence of duress is therefore denied in these situations. This matter was discussed in:

R v Hudson & Taylor [1971] 2 QB 202 Case summary

R v Abdul–Hussein [1999] Crim LR 570 Case summary

R v Hasan [2005] 2 WLR 709 Case summary

Duress of circumstances

Duress of circumstances differs from duress by threat in that the circumstances dictate the crime rather than a person. It may well be a person that creates the circumstances, but there is no requirement that a person specifies that a crime must be committed. Although there must still be a sufficient nexus between the threat and the crime:

R v Cole 1994 Crim LR 582 Case summary

The defence of duress of circumstances grew out of the inflexibility afforded in the defence of necessity. It is often referred to as necessity by another name. It will often allow a defence where the defence of necessity would deny one. The defence of duress of circumstances came about largely as a mistake in the case of R v Willer in which the defendant raised the defence of necessity. The Court of Appeal allowed his appeal and stated that he should have used the defence of duress. However, he had not been told to commit a crime, the threat came from the circumstances:

R v Willer (1986) 83 Cr App R 225 Case summary

This then set a precedent which was followed in R v Conway where the Court of Appeal noted that there was no threat in R v Willer but recognised the existence of the new defence and named it duress of circumstances: