10.2.2 Duress and Necessity Lecture

1.0 Duress

Duress applies as a defence where a person commits a crime as a response to a threat of death or serious injury either to themselves or another.

The defence of duress is a general defence but there are certain limitations on its use. It cannot be raised in defence to murder, attempted murder or by any person who has participated in killing. In cases where the defence of duress is pleaded successfully it has the effect of absolving the defendant of liability. This is because whilst he clearly possesses the requisite mens rea for the offence, in carrying out the actus reus they are acting under compulsion and not through choice, thus it is not a voluntary act. It can be seen in this respect that duress differs from those defences such as intoxication, automatism and mistake which act to negate the mens rea. It also differs from justificatory defences such as self defence as it does not justify the crime but instead offers an excuse for the behaviour of the defendant.

1.1 Types of Duress

In criminal law the defence of duress takes two different forms:

  1. Duress by threats
  2. Duress by circumstance

1.1.1 Duress by Threat

The defence of duress by threat was set out in A-G v Whelan [1993] IEHC 1 as arising in circumstances where the defendant was ordered to commit an offence whilst subject to threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance.

1.1.2 Duress by Circumstance

Duress of circumstances arises where it is not a person that provides a threat to the defendant but the nature of the situation. It might be that another person creates the threatening situation but unlike duress by threat there is no requirement that a person specifies to the defendant that a crime must be committed, so long as there is a sufficient link between the situation and the crime.

1.2 Elements of the Defence

The defence applies similarly in relation to both duress by threat and duress of circumstances and both are governed by the same criteria. Accordingly, most of the cases are authority for both forms of the defence.

The defence was set out in R v Graham [1982] 1 All ER 801. It set out two elements to the defence: a subjective element and an objective element. These are:

  1. Was the defendant or might the defendant have been induced to act as he did because he feared that if he did not, death or serious injury would result to him, an immediate relative or someone he is responsible for? 
  1. Would a sober person of reasonable firmness, sharing the defendant’s characteristics have acted in the situation in the way as he did?

If these elements can be shown then the following must also be shown for the defence to succeed:

  • There must be immediacy, and;
  • The defendant must not have missed an opportunity to escape the threat without committing a crime.

Finally, even where this has been established, following the ruling in R v Hasan [2005] 2 AC 467 the defence will be excluded where a person who voluntarily becomes involved in or remains involved with people who are engaging in criminal activity and ought to reasonably have foreseen the possibility of becoming the subject of compulsion by them or associates known to them. The House of Lords in handing down the ruling in Hasan were concerned that the defence was being too broadly applied to the benefit of defendant’s who were involved in drugs and organised crime. The House sought to restrict the defence and stop the increasing use of the defence in these situations.

Case in Focus

R v Hasan [2005] 2 AC 467

The defendant, Hasan, worked for an escort agency ran by a lady named Taeger. The agency offered prostitution services to its clients and Hasan would drive the women to the male customers and acted as a minder.

During Hasan’s employment, Taeger became involved with a man named Sullivan who was a well known drug dealer with a reputation for violence. Sullivan took over most of Hasan’s work escorting the ladies and a bad feeling existed between the two of them as a result of this. Hasan knew that Sullivan was dangerous and violent as Sullivan had previously bragged to him about 3 murders he had committed recently.

One evening Sullivan and an accomplice ambushed Hasan outside his house. Sullivan ordered Hasan to carry out a burglary on one of the escort agency’s clients. Sullivan stated that his accomplice would go with Hasan to make certain that the burglary was carried out and if it transpired that Hasan did not carry out the burglary, Sullivan would bring harm to Hasan and his family.

Hasan followed the orders but was caught and convicted of the burglary. He sought to argue duress but this was rejected by the jury. He appealed on the basis of misdirection and the case went all the way to the House of Lords.

The House of Lords stated that the conviction was correct. Lord Bingham stated at paragraph 499 that “the policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them.”

In all cases, the question is for the jury to decide whether the threat that the defendant was exposed to was serious enough so as to outweigh the seriousness of the offence committed. For example, a threat of a slap would not justify the committing of a robbery but threat of causing grievous bodily harm would likely justify the offence of theft.

1.3 The Defence Explained

  • Specified crime
  • Immediacy
  • Facing a threat of death or serious injury
  • To the defendant or a person for whom he has responsibility
  • The threat must overbear the ordinary powers of human resistance.

Specified crime

In relation to duress by threat, the threat issued must be accompanied by instruction to commit a specified crime. A threat demanding money or circumstance where money is needed which the defendant decides to avoid by committing a crime to gain the money is insufficient.

Case in Focus

R v Cole 1994 Crim LR 582

The defendant, Cole, borrowed a sum of money from a violent loan shark. This is a lender that charges exceptionally high amounts of interest on the sum borrowed. The amount due got out of hand and the loan shark threatened to inflict serious injury on Cole and his girlfriend if the money was not sharply repaid. Cole resorted to bank robbery to raise the necessary funds. In response to his charge for the offence he attempted to raise the defence of duress. The Court held that there was an insufficient link between the loan and the crime. He was not told to steal the money at any point by the loan shark, and therefore the defence failed.

Immediacy

The requirement for immediacy is broad and does not require immediacy in the strict sense of the word.

Case in Focus

R v Hudson and Taylor [1971] 2 QB 202

The two female defendants had witnessed a fight which the participants were prosecuted for. The participants of the fight who they had been asked to give evidence against were violent individuals with a well-connected group of equally violent associates who repeatedly threatened the two defendants with serious harm if they gave evidence. On the day of the trial these people turned up in the public gallery to watch the defendants. Scared, the defendants lied and made sure that the participants were not implicated in the fight. They were charged with perjury. The defence of duress initially failed as there was no immediacy. There was no way that they could be harmed in a court room full of police and witnesses. They appealed successfully with the Court holding that there must be a present threat but the threatened harm need not follow instantly. Lord Parker read Widgery LJ’s judgement and stated at paragraphs 206-207 “It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a "present" threat in the sense that it is effective to neutralise the will of the accused at that time. Hence, an accused who joins a rebellion under the compulsion of threats cannot plead duress if he remains with the rebels after the threats have lost their effect and his own will has had a chance to re-assert itself. Similarly, a threat of future violence may be so remote as to be insufficient to overpower the will at that moment when the offence was committed, or the accused may have elected to commit the offence in order to rid himself of a threat hanging over him and not because he was driven to act by immediate and unavoidable pressure. In none of these cases is the defence of duress available because a person cannot justify the commission of a crime merely to secure his own peace of mind.”

Case in Focus

R v Abdul Hussain [1999] Crim LR 570

The defendants were Shiite Muslims living in Iraq who had been sentenced to death after giving evidence during torture. They had escaped to Sudan but feared that they were to be deported and sent back to Iraq to face their punishments. They hijacked and aeroplane and took it to London where after negotiations they surrendered to the UK authorities. Initially it was ruled that the defence of duress could not apply as there was no immediacy. On appeal the Court however held that the execution of a threat need not be immediate and in this case there was sufficient immediacy for the defence to be applied.

Where there is an opportunity to take evasive action to negate the threat then Hasan suggests that this will negate the immediacy.

Facing a threat of death or serious injury

This element is fairly self-explanatory and sets out that the threat that the defendant faces must be one of death or serious injury. Blackmail or other threats to reveal sensitive information are not therefore sufficient but may be taken into account by the courts where they exist alongside relevant threats of death or serious injury.

Case in Focus

R v Valderamma-Vega [1985] Crim LR 220

The defendant was practising homosexual activities during his marriage to a woman. He was confronted by threats to reveal this to his wife, alongside threats of serious injury to the defendant and his family if he did not participate in the importation of illegal drugs. The Court initially held that the defence of duress could not apply due to the threats of the information being revealed by on appeal clarified that these threats could be taken into account in this instance as they existed alongside threats of serious injury.

To the defendant or a person for whom he has responsibility

As above, this element is clear in that the threat that arises from the individual or the circumstance must be a threat against either the defendant himself or a person which the defendant has responsibility for. This would include for example family members.

Case in Focus

R v Shayler [2001] 1 WLR 2206

The defendant worked for Mi5. As an employee of the Intelligence Agency he had signed under the Official Secrets Act not to disclose information and he was bound by this. In spite of this the defendant provided a journalist with confidential documents pertaining to national security issues. The defendant was charged for this but contented that his disclosure had been necessary to protect the general public who faced a threat from the issues contained in the documents. The Court dismissed this reasoning and held that he was not entitled to raise the defence of duress as he had not identified precisely who the potential victims were nor establish any responsibility for them. Lord Woolf set out an example explaining the reasoning comparing two scenarios, one where a spy is captured and told his family will be murdered if he does not disclose information and another where a spy believes that someone somewhere at some time may possibly suffer if he does not disclose information to the public. He stated at paragraph 67 that “the first is a situation where almost certainly a defendant would be able to rely on the defence. The second position is one where a defendant cannot possibly rely on the defence. Mr Shayler falls squarely within the second position on the spectrum.”

In contrast to Shayler, in some instances the situation existing can place the defendant in a position where he is responsible for the person in question. Consider the case of R v Conway [1989] QB 290.

Case in Focus

R v Conway [1989] QB 290

The defendant was driving a passenger in his car a Mr Tonna. A few weeks prior to this Mr Tonna had been the intended victim in a car shooting where he had been shot at and chased. The defendant saw that they were being followed and feared instantly that it was the man who had previously tried to assassinate Mr Tonna. He sped up to the point he was driving massively in excess of the speed limit and very recklessly. Unluckily for the defendant the car following them was actually an unmarked police car and he was duly charged with the reckless driving offence. At trial the defence of duress was refused but this was overturned by the appeal with the Court holding that the defence should have been allowed before the jury. 

The threat must overbear the ordinary powers of human resistance.

The objective arm of the Graham test set out above acts so as to establish whether the threat faced would cause a reasonable person to act in the same way. The way of establishing that is to ask whether the given threat was so great that it would overbear the powers of ordinary human resistance. This focuses on three points:

  1. a reasonable belief
  1. a good cause of fear
  2. a sober person of reasonable firmness, sharing the characteristics of the defendant might act the same.

In applying this test, some but not all of the characteristics of the defendant may be taken into account. A recognised medical condition causing the defendant to have a reduced firmness can be taken into account but a general nervous disposition cannot. In R v Martin [2001] EWCA Crim 2245, the defendant was a schizoid. This denotes that he had a type of personality disorder whereby he had a lack of interest in social relationships and preferred a solitary existence with tendencies towards emotional coldness. This condition meant that the defendant was more likely to interpret words and actions as a threat. The Court held in this situation that any personal characteristics relevant to the defendant’s interpretation of the threat should rightly be considered.  R v Bowen [1996] 4 All ER 837 is authority for the fact that age, sex and any physical disability should be taken into account but not IQ. R v Flatt [1996] Crim LR 576 further held that any self-induced characteristics could not be given to the reasonable person.

Examination Point

This element of the defence is a favourite for focus in problem questions. Make sure that you clearly consider all of the characteristics of the defendant then specify whether these are relevant and can be applied to the person of reasonable firmness or whether they will be disregarded by the court altogether. This is a really good opportunity to show off your ability to critically apply the law so learn the relevant cases and characteristics so don’t miss your chance to shine!

1.4 When can the defence be used

As explained in the introductory notes, the defence of duress is a general defence and is available to raise in response to most charges, however there are some exceptions. The defence is not available in the following situations:

  • Hasan confirms that the defence is not available in response to a murder charge. R v Gotts [1992] 2 AC 412 states that the defence is also not available to attempted murder. However R v Ness (2010) unreported has suggested that the defence may be available in relation to a charge of conspiracy to murder.
  • The defence is not available in response to a charge of treason.
  • Following R v Sharp 1987 1 QB 853 , the defence is also excluded in cases where the defendant of his own will and with knowledge of the nature of the group, joins a violent criminal gang. However, where the gang is not known to be violent R v Shepherd(1988) 86 Cr App R 47 suggests that duress will not be excluded. Similarly to the gang exemption, the defence is unavailable where the defendant voluntarily joins a terrorist group. Hasan suggests this goes further and that the defence will not be available where the defendant involves himself in criminal activity and the possibility of becoming exposed to compulsion should reasonably have been foreseen.
  • Following on from the above, where the defendant becomes indebted to drug dealers he will not be able to use the defence.
  • Due to the immediacy requirement, the defence will become obsolete in cases where the defendant had opportunity to or could reasonably have taken evasive action

2.0 Necessity

2.1 Concept of Necessity

This defence arises where the defendant successfully argues that due to a greater evil, it was necessary to commit the offence that he carried out. He had a choice between committing a criminal offence or allowing himself or another to suffer. In the situation the commission of the offence was the lesser of the two evils. The defence of duress discussed above, especially in situations of duress of circumstance is a specific form of a necessity defence. Self-defence is another example of necessity embodied in a more narrowly defined defence. Despite these allowances for necessity related defences the courts have been reluctant to recognise a general defence of necessity. The reluctance to recognise such defence can be seen in the historic and oft-cited ruling of R v Dudley and Stephens (1884) 14 QBD 273.

Case in Focus

R v Dudley and Stephens (1884) 14 QBD 273

The defendants were crew on a boat that was shipwrecked following a fearsome storm. A number of the crew had to abandon their vessel to board a lifeboat whereupon they were stranded for a number of days. The food did not last and they were left for over a week without food and 5 days without water. The defendants agreed to draw straws to decide which one would be killed to save the others. There was a young cabin boy with them who was in too poor a state to participate. The defendants decided it would be more logical to kill the boy as he was near death anyway and had the least chance of survival. They slit his throat and fed on him to survive.  The defendants were subsequently rescued and charged with the cabin boy’s murder. They attempted to raise a defence of necessity to the charge but the Court refused to entertain this.

Speaking at paragraphs 286-287, Lord Coleridge stated “ it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it.”

He continued at paragraph 287-288 that “it is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be “No””.

Lord Denning echoed the sentiment expressed in Dudley and Stephens in the case of Southwark London Borough Council v Williams [1971] Ch 734 stating in his judgement that the defence of necessity would open a door which no man could shut. He cited the example of hunger operating as an excuse of stealing and argued this would open a way for all kinds of disorder. Homelessness would be a defence to trespass and no man’s property would be safe. This would spiral and he questioned where would the line be drawn. He stated therefore that it was necessary for the courts to take a firm stand for the sake of law and order and trust in such cases that charitable and good human nature would prevail.

Examination Point

A question on necessity is most likely to manifest itself as an essay question as to the rationale behind the defence and whether there should be a general defence. Study the extracts from the cases carefully and try and form your own arguments and opinions as critique and analysis. To assist you in doing this and open you up to the higher marks, do some research of your own and look at a range of academic materials, especially the primary cases and journals in order to gage some depth of understanding and diversity of opinion.

2.2 Requirements of the Defence

The idea of a general necessity defence was discussed Gillick v West Norfolk and Wisbeck Area Health Authority [1986] AC 112 in relation to it being necessary for a doctor to prescribe contraception to an underage girl, however this was only obiter discussion. The defence was then recognised by Lord Goff in Re F (Mental patient sterilisation) [1990] 2 AC 1 where he stated that there was indeed a defence of necessity and applied it in handing down his judgement.

Case in Focus

Re F (Mental patient sterilisation) [1990] 2 AC 1

The patient, F was an adult woman who had suffered from a severe mental disability since she was a baby. She had been voluntarily incarcerated in a psychiatric hospital since she was a teenager and had the verbal and mental capacity of a toddler. During her stay in the hospital she developed a sexual relationship with another patient. The staff were very concerned at the impact a potential pregnancy would have on her and knew that she would not be able to raise a child. Trying to get her to use contraceptive was not an option due to her limited understanding. The hospital applied to the Court seeking a declaration for lawful sterilisation which would need to be undertaken in the absence of F’s valid consent as she did not have the capacity to give it. The Court granted the declaration and in doing so established that there was no power for the court to give consent on behalf of F so to prevent the unlawful grievous bodily harm the doctors would need to raise a defence. The judges considered that in this circumstance the principle of necessity could be given recognition.

Following the recognition of the defence, the case of Re A [2001] Fam 149 took this further, confirming the decision in Re F and holding that it could even be used as a defence to murder.

Case in Focus

Re A [2001] Fam 149

The case involved two conjoined twins, Mary and Jodie. Jodie strong and capable of independent existence but Mary was very weak and depended entirely on Jodie to keep her alive. Doctors were certain that if left conjoined Mary would cause too much of a strain on Jodie and they would both be unable to survive. They believed that operating to separate them would kill Mary but it would give Jodie a high chance of living a good quality, independent life. The parents refused to allow this but the doctors applied to the Court for a declaration that this operation would be in the best interests of the children and lawful, even though it was inevitable that it would cause Mary’s death. The Court held that the operation could be carried out lawfully.

The reasoning behind the decision in Re A was that the Court believed the operation was necessary, and thus the doctors would be afforded the defence in relation to the operation. The requirements that must be filled in order for this defence to apply were set out by Lord Justice Brooke. These are that

  1. the act is needed to avoid inevitable and irreparable evil;
  1. no more should be done than is reasonably necessary for the purpose to be achieved, and;
  2. The evil inflicted is not disproportionate to the evil avoided.

Following R v Quayle [2005] EWCA Crim 1415, a fourth criteria was addded:

(iv) The necessity must have arisen in extraneous circumstances

And finally, following the ruling in Shayler, a fifth criteria became necessary:

(v) The evil must be directed towards the defendant himself or someone who he had responsibility for.

2.3 Necessity in practice

The case of Re A recognised that the defence could be applied but due to the restrictive criteria set out and subsequently added to, the reality of a general defence of necessity is not an easy defence to argue in practice. In fact, most of its success has been limited to medical cases to protect professionals and allow for patient’s best interests to be looked after. It has not yet gone so far as to protect patients acting in their own best interests in relation to self-medication cases.

Case in Focus

R v Quayle [2005] 1 WLR 3642

This was a conjoined appeal from five defendants, all convicted of drugs offences relating to the possession, importation or cultivation of cannabis and all appealing on the basis of the applicability of the defence of necessity in relation to their offences.  The defendant’s were all arguing that in their instances the cannabis was solely for medical purposes for the relief of various painful conditions including HIV and Multiple Sclerosis. The Court shut down this argument and dismissed their appeals holding that no defence of necessity was applicable in their circumstances.

However, again protecting medical professionals, the Home Office agreed with the Pharmaceutical Society of Great Britain that in relation to drug trials it could be necessary to use cannabis.

Outside of the medical arena the defence of duress of circumstances may afford a better route to defendants. This defence is still very restrictive but the court’s are more open to hearing this defence as it is not accompanied by the public policy fear of opening the flood gates to justifying immoral behaviour.

2.4 Arguments for a General Defence

Examination Point

The arguments against a general defence have already been discussed above. Revisit the notes on Dudley and Stephens and Southwark London Borough Council v Williams in relation to this. In order to provide strong critical analysis in a possible essay question on the issue it is vital to also consider and appreciate the arguments for a general defence. Don’t stop your research here. Consider which side of the discussion you agree with most, and look into further articles and relevant cases in order to strengthen your argument. Remember though in an essay on the topic you should set out both sides of the discussion before lobbying your view.

  1. Taking into account the defendant’s motive

The law holds that a person should only be responsible for acts of their own free will.  The defence of automatism supports this whereby the defendant who carries out an act due to an internal or external factor that deprives them of their free will is afforded a defence. This defence limits the recognition to a physical inability to exercise free will but does not encompass a circumstantial inability whereby although the defendant may physically be able to control his actions, realistically he has no choice but to act as he does, thus depriving him of his free will.

(ii) Impossible standards of morality

Not recognising a defence of necessity sets a standard whereby the law expects individuals to exercise good morals and obedience to the law above the basic human instinct of survival. Consider the case of Dudley and Stephens. Realistically, can it be reconciled with Re A, other than the fact that Dudley and Stephens were not medical professionals? A decision was taken to kill the person least likely to survive, the cabin body in Dudley and Stephens and baby Mary in Re A. In both cases the decision was taken in order to effectuate the survival of the others, and in both cases if the decision had not been taken all parties involved would likely have met their death. In any case, this standard of morality handed down by the law is exceptionally high so as to criminalise human beings fighting for their survival in dire circumstances whilst at the same time imposing no liability for a duty to act on an adult walking by a child drowning in a lake. It can be argued that the law is inconsistent in this respect and should take a more level approach to the standard of morality expected from people.

(iii) Other jurisdictions recognise the defence

A general defence of necessity is recognised in many other countries and seemingly they still maintain a good level of lawfulness and have not descended into the anarchy that Lord Denning postulated in Southwark London Borough Council v Williams.

Hands on Example

The following problem question is designed to test your knowledge of the defence of duress and give you an opportunity to try and apply the elements of the defence in a practical context in response to an offence committed. Defence problem questions are not like other problem questions on offences where you establish the actus reus and mens rea and then apply them to see if they are fulfilled, so it may take a few attempts at them to adjust your style before you feel really confident at tackling them!

Take a look at the following scenario and identify any material facts as you read. Once you have done this, try and apply the defence using the case law we have looked at in these notes.

If you’re not feeling too confident about the question or the application of the defence there is absolutely no need to be concerned! Defences can and will take time to get your head around. By looking at exam style questions you are taking the right steps towards getting properly acquainted with them and when you have done enough it will become second nature! For now, a step by step outline answer has been set out and this contains all the points you need to follow and discuss when you address the scenario. Try and implement the structure and use this as guidance in writing or checking your own answer. Everything you need to know to answer this question has been discussed already so refer back to the notes to help you as you go. Good luck!

Aaron lives in an estate just outside Birmingham city centre. On the estate, there is a well-known group of lads that supply drugs around the estate. They make a lot of money and always sport designer brands and have the latest technology but they have a fearsome reputation and many of the members of the gang have been in prison at some point for violent crimes against other dealers and people who have been indebted to them. Aaron approaches the gang leader, Dean and tells him he wants in. Aaron is a little scared as he knows of the gangs reputation but Dean tells him  as long as he stays on the right side of him he has nothing to worry about. For a few weeks things go well and Aaron makes a lot of money. He starts going to the casino and one night he loses massively at poker and ends up owing a lot of money to another player. Aaron pays up by giving him all the money from his drug sales that week. He is supposed to give the money to Dean’s right hand man Jay who takes the proceedings and then pays Aaron a cut out of that. When he goes to Jay with no money Jay is livid and tells Aaron that he must pay the money back by the next morning, even if he has to steal it, or he will be killed. Aaron knows that his brother’s girlfriend Susie is very well off and has seen her wear a diamond necklace. He decides to break into Susie’s house that night and steal the necklace. He sells it the next morning and is able to repay Jay in time to avoid the threat.

Aaron is subsequently charged with the burglary. Discuss Aaron’s ability to raise the defence of duress

Aaron

  • What type of duress?
  • Duress by threat as per A-G v Whelan as Jay has posed a verbal threat to Aaron.
  • Applying R v Graham, have all the elements of the defence been satisfied?
  • Specified crime: Jay has suggested to Aaron that he might need to steal to get the money but he has not specified exactly what he should steal or where from. Applying Cole, although the general offence of theft has been suggested this is not an absolute must as Jay is seemingly not bothered how he gets the money, as long as he gets it. This could, therefore, be argued either way on the facts as long as you support your decision with reasoning.
  • Immediacy: Applying R v Hudson and Taylorand Abdul Hussain this requirement is broad, and therefore is not definitely negated by the fact that the harm will come in the morning, as long as the threat is present. However Hasan suggests that an opportunity to take evasive action or prevent the threat will negate any immediacy. In this case, it could be argued that Aaron had ample time overnight to go to the police station but given the nature of the fact he was operating within a gang of people it is possible that this would not have negated the threat posed to him as one of the other gang members such as Dean would likely carry out the threat of death as revenge for grassing Jay up.
  • Facing a threat of death or serious injury: In this case it is clear that Aaron is facing a threat of death.
  • To the defendant or a person for whom he has responsibility: The threat is towards Aaron so this element is clearly satisfied.
  • The threat must overbear the ordinary powers of human resistance: This is an objective test looking at a person of reasonable firmness in the circumstances of the defendant. On the facts Aaron does not have any relevant characteristics that would give him a reduced firmness and it is likely that a such person of reasonable firmness facing a real threat of death might have behaved in the same way.
  • Can the defence be used?
  • The defence can be applied in relation to burglary as it is not one of the excluded offences. However applying Hasan, the defence will not be possible where the defendant has knowingly involved himself in a criminal organisation and should have reasonably foreseen that he may become the subject of their compulsion. Given the gang’s reputation it will be difficult to argue that Aaron would not have reasonably foreseen that, particularly as it is stated that he was nervous approaching Jay because of this.
  • Given this it is highly unlikely that Aaron will not be able to avail himself of the defence of duress.

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