Published: Wed, 07 Mar 2018
DURESS BY THREATS
The general nature of the defence of duress is that the defendant was forced
by someone else to break the law under an immediate threat of serious harm
befalling himself or someone else, ie he would not have committed the offence
but for the threat. 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.” (Attorney-General v Whelan  IR 518, per Murnaghan J (Irish
The defendant bears the burden of introducing evidence of duress and it is
then up to the prosecution to prove beyond all reasonable doubt that the
defendant was not acting under duress. If a defence is established it will
result in an acquittal.
1. THE THREAT
The defence must be based on threats to kill or do serious bodily harm. If
the threats are less terrible they should be matters of mitigation only.
It is generally accepted that threats of violence to the defendant’s family
would suffice, and in the Australian case of R v Hurley  VR 526, the
Supreme Court of Victoria allowed the defence when the threats had been made
towards the defendant’s girlfriend with whom he was living at the time.
The threats must be directed at the commission of a particular offence:
In R v Coles  Crim LR 582, the defendant was charged with committing
a number of robberies at building societies. At his trial he sought to adduce
evidence that he had acted under duress. The basis for the defence was that 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
2. THE TEST FOR DURESS
The two-stage test for duress is contained in R v Graham  1 WLR 294.
R v Graham  – The defendant (G) lived in a flat with his wife and
his homosexual lover, K. G was taking drugs for anxiety, which made him more
susceptible to bullying. K was a violent man and was jealous of the wife. One
night after G and K had been drinking heavily, K put a flex round the wife’s
neck, pulled it tight and then told G to take hold of the other end of the flex
and pull on it. G did so for about a minute and the wife was killed. Both were
charged with murder. The defendant pleaded not guilty and said that he had
complied with K’s demand to pull on the flex only because of his fear of K. The
judge directed the jury on the defence of duress (too favourably) but the
defendant was convicted. The Court of Appeal, in confirming the conviction, laid
down the model direction to be given to a jury where the defence of duress was
raised. (This was subsequently approved by the House of Lords in R v Howe 
AC 417.) The jury should consider:
(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 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 intoxication as a separate defence in its own right.
The reasonable person is of average fortitude, ie strength and firmness of
In two cases, R v Hegarty  Crim LR 353 and R v Horne  Crim LR
584, the defendant sought to introduce psychiatric evidence that he was
especially vulnerable to threats. His aim was to argue that this characteristic
of vulnerability should be attributed to the reasonable man when the objective
test (see above) was applied. The Court of Appeal refused to admit the evidence
in both cases because it rejected the argument that the reasonable person should
be endowed with the characteristic. The rationale of the objective test was to
require reasonable firmness to be displayed and it would completely undermine
the operation of that test if evidence were admissible to convert the reasonable
person into one of little firmness.
What are the relevant characteristics of the accused to which the jury should
have regard in considering the second objective test? See:
In R v Bowen  Crim LR 577, the Court of Appeal held that a low IQ,
short of mental impairment or mental defectiveness, was 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. Stuart-Smith LJ
stated that age and sex were, and physical health might be relevant
characteristics. The other principles were as follows:
* The mere fact that the accused was more pliable, vulnerable, timid or
susceptible to threats than a normal person did not make it legitimate to invest
the reasonable/ordinary person with such characteristics for the purpose of
considering the objective test.
* The defendant might be in a category of
persons whom the jury might think less able to resist pressure than people not
within that category. For example, age; possibly sex; pregnancy; serious
physical disability, which might inhibit self-protection; recognised mental
illness or psychiatric condition.
* Characteristics which might be relevant in
considering provocation would not necessarily be relevant in cases of duress,
for example, homosexuality.
* Characteristics due to self-imposed abuse, such as
alcohol, drugs or glue-sniffing, could not be relevant.
* Psychiatric evidence
might be admissible to show that the accused was suffering from mental illness,
mental impairment or recognised psychiatric condition provided persons generally
suffering from such condition might be more susceptible to pressure and threats
and thus to assist the jury in deciding whether a reasonable person suffering
from such a condition might have been impelled to act as the defendant did.
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 resort to the protection of the law, he must
do so. When the threat has been withdrawn or becomes ineffective, the person
must desist from committing the crime as soon as he reasonably can. As Lord
Morris said in Lynch  AC 653:
[The question is whether] a person the subject of duress could reasonably
have extricated himself or could have sought protection or had what has been
called a ‘safe avenue of escape’.
What is the position if the defendant has an opportunity to seek help but
fears that police protection will be ineffective?
In R v Hudson and Taylor  2 QB 202, two teenage girls committed
perjury during the trial of X. They claimed that X’s gang had threatened them
with harm if they told the truth and that one of them was sitting in the public
gallery during the trial. The defendants were convicted of perjury following the
trial judge’s direction to the jury that the defence of duress was not available
because the threat was not sufficiently immediate. Allowing the appeals, Lord
Widgery CJ stated:
* The threat was no less compelling because it could not be carried out there
if it could be carried out in the streets of the town the same night.
* The rule
does not distinguish cases in which the police would be able to provide
effective protection, from those when they would not.
* The matter should have
been left to the jury with a direction that, whilst it was always open to the
crown to shown that the defendants had not availed themselves of some
opportunity to neutralise the threats, and that this might negate the immediacy
of the threat, regard had to be had to the age and circumstances of the accused.
4. VIOLENT GANGS VOLUNTARILY JOINED
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. In joining such an organisation
fault can be laid at his door and his subsequent actions described as
In R v Sharp  1 QB 353, the defendant was a party to a conspiracy to
commit robberies who said that he wanted to pull out when he saw his companions
equipped with guns, whereupon one of the robbers threatened to blow his head off
if he did not carry on with the plan. In the course of the robbery, the robber
killed a person. The defendant was convicted of manslaughter and appealed. In
dismissing the appeal, the Court of Appeal held that a man must not voluntarily
put himself in a position where he is likely to be subjected to such compulsion.
Lord Lane CJ said:
Where a person has 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,
he cannot avail himself of the defence of duress.
The defence is not inevitably barred 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 he was unaware of any
propensity to violence, the defence may be available. The court so held in:
R v Shepherd (1987) 86 Cr App R 47. The defendant joined a group of
thieves. They would enter retail premises and while one of them distracted the
shopkeeper, others would carry away boxes of goods, usually cigarettes. The
defendant claimed that after the first burglary he wanted to give up, but had
been threatened with violence to himself and his family if he did not carry on
with the thefts. He was convicted of burglary and appealed against conviction.
In allowing the appeal, the Court of Appeal held that the question should have
been left to the jury to decide whether he could be said to have taken the risk
of violence from a member of the gang, simply by joining its activities.
Until these decisions there was no English authority on the point, but there
was persuasive authority in the Court of Criminal Appeal in Northern Ireland in R v Fitzpatrick  NILR 20. The defendant, who had voluntarily joined the
IRA, tried to raise the defence of duress to a charge of robbery. He claimed
that he had committed the offence following threats that had been made to him by
other IRA members if he did not take part. The appeal court held that the trial
judge had been correct in withdrawing the defence of duress from the jury:
* As a matter of public policy the defence could not be made available to
those who voluntarily joined violent criminal associations, and then found
themselves forced to commit offences by their fellow criminals.
* To do so would
positively encourage terrorist acts, in that the actual perpetrators could
escape liability on the ground of duress, and further,
* it would result in the
situation where the more violent and terrifying the criminal gang the defendant
chose to join, the more compelling would be his evidence of the duress under
which he had committed the offences charged.
R v Fitzpatrick was endorsed by the Court of Appeal in R v Sharp, a decision
which makes it clear that this is not a principle limited to cases involving
The principle in R v Sharp was extended by the Court of Appeal in:
R v Ali  Crim LR 303 – The defendant was a heroin addict and seller
who had fallen into debt to his supplier, X. From the outset, he knew X to be a
very violent man and he had been threatened by him that he would be shot if he
did not repay the debt. X gave him a gun and told him that he wanted the money
by the following day. X told him to get it from a bank or building society. The
defendant alleged that he was scared that X would get him if he went to the
police and so he committed a robbery at a building society. He was convicted
despite his defence of duress. The Court of Appeal dismissed his appeal. The
defence was not available where the defendant knew of a violent disposition in
the person involved with him in the criminal activity which he voluntarily
joined. Thus, if the defendant voluntarily participated in a criminal offence
with X, whom he knew to be of a violent disposition and likely to perform other
criminal acts, he could not rely on duress if X did so.
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:
Duress and murder is now governed by the House of Lords’ decision in R v Howe
and Others  AC 417, in which it was held that duress would not be
available to a defendant who committed murder either as principal or accomplice.
In R v Howe, two appellants, Howe and Bannister, participated with others
in torturing a man who was then strangled to death by one of the others. These
events were repeated on a second occasion but this time it was Howe and
Bannister who themselves strangled the victim to death. They claimed that they
had acted under duress at the orders of and through fear of Murray who, through
acts of actual violence or threats of violence, had gained control of each of
the defendants. The House of Lords dismissed their appeals against conviction.
Lord Hailsham LC made the following points:
* Hale’s Pleas of the Crown (1736) and Blackstone’s Commentaries on the Laws
of England (1857) both state that a man under duress ought rather to die himself
than kill an innocent.
* If the appeal (and consequently the defence) were allowed the House would
also have to say that R v Dudley and Stephens was bad law (which it was not
prepared to do). A person cannot be excused from the one type of pressure on his
will (ie, duress) rather than the other (ie, necessity).
* In the present case, the overriding objects of the criminal law must be to
protect innocent lives and to set a standard of conduct which ordinary men and
women are expected to observe if they are to avoid criminal responsibility.
* In the case where the choice is between the threat of death or serious
injury and deliberately taking an innocent life, a reasonable man might reflect
that one innocent human life is at least as valuable as his own or that of his
loved one. In such a case a man cannot claim that he is choosing the lesser of
two evils. Instead he is embracing the cognate but morally disreputable
principle that the end justifies the means.
* If a mandatory life sentence would be harsh on any particular offender
there are effective means of mitigating its effect – the trial judge may make no
minimum recommendation, the Parole Board will always consider a case of this
kind, and the prerogative of mercy may be used.
(See Smith & Hogan, Criminal Law, Eighth edition 1996, p241-2 for general
points made in the House)
B) ATTEMPTED MURDER
In R v Gotts  2 AC 412, the defendant, aged 16, seriously injured his
mother with a knife. In his defence to a charge of attempted murder he claimed
that his father had threatened to shoot him unless he killed his mother. The
trial judge ruled that such evidence was inadmissible since duress was not a
defence to such a charge. The defendant pleaded guilty and then appealed. The
House of Lords held that the defence of duress could not be raised where the
charge was one of attempted murder. Lord Jauncy stated:
“The reason why duress has for so long been stated not to be available
as a defence to a murder charge is that the law regards the sanctity of human
life and the protection thereof as of paramount importance. Does that reason
apply to attempted murder as well as to murder? As Lord Griffiths pointed out
[in Howe]… an intent to kill must be proved in the case of attempted murder
but not necessarily in the case of murder. Is there any logic in affording the
defence to one who intends to kill but fails and denying it to one who
mistakenly kills intending only to injure?…
It is of course true that withholding the defence in any circumstances will
create some anomalies but I would agree with Lord Griffiths (Reg. v Howe) that
nothing should be done to undermine in any way the highest duty of the law to
protect the freedom and lives of those who live under it. I can therefore see no
justification in logic, morality or law in affording to an attempted murderer
the defence which is held from a murderer. The intent required of an attempted
murderer is more evil than that required of the murderer and the line which
divides the two is seldom, if ever, of the deliberate making of the criminal. A
man shooting to kill but missing a vital organ by a hair’s breadth can justify
his action no more than can the man who hits the organ. It is pure chance that
the attempted murderer is not a murderer….”
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