Criminal Law- Duress
Graham
D lived with his wife W and his male lover K. K was violent and attacked W. one way while W was out K suggested that the D they kill the W. D phoned W and asked her to come home, K put a flex around Ds neck and told D to pull the other end of it. which he did. W died and D tried to claim he was acting out of fear of K. D was convicted and appealed on grounds of duress by threat. CoA held that the words and deeds of K fell well short of what is required to raise this Defence. must be a threat of death or serious personal injury.
R v Van Dao (Vinh)
there was three workers working in a canibis factory, they were convicted of cultavating canibis. Ds argued that they were locked in that factory with no means of escape and the work they had been carrying out was done under duress. in this case they were found with mobile phones and keys to the building, the CoA said that their claims of duress were fanciful. there was no threat of death or personal injury. threat of false imprisonment alone was insufficient.
R v Valderrama vega
D was charged with offences related to illegal importantion of drugs. he pleaded duress on three grounds, first it was that threats against his life had bee made, second was a threat to disclose his homosexuality, third was that he needed money. CoA said it was wrong to direct the jury that the death threats must be the only cause of the crime even though the second and third reason would have been insufficient on their own, since they were accompanied, all were taken into account to satisfy the duress defence
R v Ortiz
D had been forced to take part in a cocaine smuggling operation, after he had been told that if he refused his wife and children would disappear. ultimately it was rejected, however CoA accepted appeal.
Hudson and taylor
- the threats were likely to be no less compelling because their execution could not be effected in the court room, if they could be carried out in the streets the same night.
- two teenage girls who had committed purgery while giving evidence in a criminal trial against a violent gang. another member of this drug gang had threatened to cut them up if they told of the D in the crime. some memers of the gang were in the pulic gallary. appeal was allowed.
Abdul Hussain and others
- although the feared violence was imminent rather than immediate, the significant factor was whether the threat had operated on their minds at the time of the offence so as to overbear their will.
- group of muslims who hijacked a plane to london they had fled from irac due to fear of government prosecution. on appeal they claimed that they were under duress. CoA held that even though the threat of violence was imminent rather than immediate. the question was whether the fact had operated on their mind at the time of committing the crime
Safi and others
The threat need not exist in fact so long as D reasonably believes that it does
Brandford
the threat was conveyed to the defendant by her boyfriend who told her that his life was being threatened, so threats were being made against his life, if they didn't transport the drugs. the CoA held that such hearsay threats, can support a duress defence. so they don't have to be directly conveyed to the defendant. the more indirect the threat, the less imminent its going to be
R v Martin (David Paul)
D was a paranoid schizophrenic who appealed against convictions of two robberies on the grounds of duress. he stated that he had been threatened by these two men. psychiatric evidence was given the trial that his condition would render him more likely to believe that he had been threatened and that the threats would be carried out. at trial, the judge directed the jury that they must assess the Ds belief in the treat according to what a mentally healthy person would have believed. the CoA held that this was wrong. the law is the same as self defence in that the defendant should be judges on the facts as he perceives them to be.
R v Cole
- There must be a connection between the threat and the crime committed, did the duressor nominate the crime? –
- D had robbed two building societies and it was claimant that ihe did so to pay off a debt to moneylenders who had hit him with a baseball bat. they had also made threats to him and his family. the CoA held that the defence is only available if the threats are directed at the offence committed.
R v Bowen
D was a man with a low IQ who was convicted of obtaining services by deception. he claimed that two man had threatened him and lad threatened specifically to petrol bomb his house unless he obtained these goods. evidence was given at the trial to show that he was abnormally vulnerable and suggestible, however the judge refused to allow these characteristics to be put before the jury
R v GAC
- D appealed against a conviction for importation of drugs claiming she suffered battered woman syndrome and was under duress from her partner W. a psychiatrist concluded that the defendant was suffering from BWS at the time of the offence. the psychiatrist report found that the threat of violence form W was ever present and D felt she had no alternative but to comply with Ws demands, she was fearful of the consequences for her, her children and her family should she not comply with those demands by the league. it was the psychiatrists opinion that when W told her to commit the offence, she had no option but to obey. the court dismissed her appeal and how they could not be established that the defendant had been subjected to violence so severe that she had lost her free will
- Not every woman who suffered from domestic violence went on to suffer from BWS and not every woman who suffered from BWS could claim the defence of duress. It was essential to analyse the extent and timing of the domestic violence, the impact on the person concerned and their presentation at the relevant time. An accused would have to
have suffered from BWS in a severe form to be in a position where their will was overborne.
r v Fitzpatrick
IRA case. he stated he had been forced to take place in a robbery even though he was voluntarily part of the IRA so he couldn't raise the defence
R v sharp
extended to criminal association or a gang, in this case it was a gang or robbers
R v Shapherd
extended to include a shop lifting gang
Baker and ward
- suggested D must be aware of the risk of being subjected to pressure by way of violence to commit offences of the type alleged
- D was a heroin dealer who was forced to commit robbery by his supplier, CoA held that the defence could be available where D wasn't aware of the risk to commit other types of crimes other than drug related- very broad approach
R v Hasan
D worked for T who was involved in prostitution, Ts boyfriend S was involved in the supply of drugs and had a reputation for violence. D claimed he had been ambushed by S and another man armed with a gun and made to carry out a burglary. he had been threatened with deadly consequences to himself and this family if he failed to carry out that burglary. S and this man drove D to a house and gave him a knife and forced him to commit it hasan tried to argue duress. he had associated with S, so he was likely to be subjected to threats. CoA overturrned this verdict based on the case of Baker and Ward
Lynch v DPP
D was threatened with violence unless he drove in a gunman to a place where a policeman was to be shot, is he didnt do this serious harm was to be inflicted upon him. HoL held that duress is available to secondary party to murder, so aiding and abetting murder but not a defence to murder
Abbot v R
- duress not a defence to principals to murder.
- D had been threatened with his own and his mothers death unless he took part in a murder, he dug a hole while the victim was being stabbed, he helped to fill the hole while she was alive, she died die to the stabbing and suffocation. he tried to argue he was only secondary to the killing, this was rejected, and therefore couldn't raise the defence.
R v Howe & Bannister
Ds participated with two others of the sexual assault torture and murder of two teenage boys, they participated in everything but the killing for one and all for the other, they were charged with the murder for one and conspiracy for the other, they tried to argue they feared their lives, however Duress is no defence to murder no matter the degree of your participation.
R v Gotts
duress no defence to attempted murder
R v Wilson
D regularly visited his father, F, who lived below the victim. V suffered from mental health problems and would grant at people for no reason, V had disturbed F and his girlfriend by being abusive to them, D who was 13 was due to spend the night with them, later that night Vs flat was set on fire, V had injuries consistent with an attack. D admitted he was there at the time of the murder and contributed with a blow to the head. no defence to murder.
what are the parameters of duress?
- All or nothing– duress is a complete defence to all crimes apart from murder, attempted murder and some forms of treason to which it is no defence at all.
- Excuse– duress is viewed as an excusatory defence – a concession to human frailty. D’s wrongdoing should be excused because his will was overborne by threats of death or serious harm.
what is the test for duress by threat?
- The test for duress derives from two cases R v Graham and R v Howe & Bannister
1. Was D forced to act as he did because of a reasonable fear of death or serious injury?
2. Would a sober person of reasonable firmness, sharing D’s characteristics, have responded in the same way?
how serious does the threat need to be?
Must establish a threat of death or serious personal injury– R v Hasan; R v Graham
Threat of false imprisonment alone insufficient - R v Van Dao (Vinh)
The threats must cause D to commit the crime but need not be the sole cause – R v Valderrama-Vega
who must the threats be against?
The threat must be directed at D or ‘his immediate family or someone close to him or for whom he is responsible’–R v Hasan
what if there is an escape avenue?
The threat must be of imminent harm so that D could not reasonably be expected to take evasive action
hudson & taylor
abdul hussain &others
what if the threat was false?
The threat need not exist in fact so long as D reasonably believes that it does- Safi & Others
The threat may be conveyed to D indirectly – Brandford [2016] EWCA Crim 1794
In R v Martin (David Paul) the Court of Appeal seemed to adopt an approach similar to that taken in self-defence that the belief had to be genuine but did not have to be reasonable.
must the crime be nominated?
There must be a connection between the threat and the crime committed, did the duressor nominate the crime? – R v Cole [1994] Crim LR 582
what are the rules around the reasonable person would have responded in the same way?
Graham- the Court stated that D is required to display the ‘steadfastness reasonably to be expected of the ordinary person in his situation’. The threat must be one which would overcome the will of the ordinary person of the age and sex of D, sharing such of D’s characteristics as would affect the gravity of the threat to him
what characteristics can be considere?
R v Bowen
the defendant may be in category of persons who the jury may think less able to resist pressure than people not within that category.
what are the rules around battered woman syndrome?
R v GAC
An accused would have to
have suffered from BWS in a severe form to be in a position where their will was overborne.
voluntary association/self-induced duress
The defence of duress will fail where D associates with others whom he knew or ought to have known might subject him to compulsion by threats or force (sometimes referred to as self-induced duress - Hasan).
R v Fitzpatrick
R v sharp
R v shepherd
can be compulsion of any threats of violence, does not have to be a specific one- R v Hasan
what are the rules around duress and murder?
Duress is not a defence to Murder, Attempted Murder and Treason
Lynch v DPP for NI [1975] 1 ALL ER 913 - duress available to secondary party to murder.
Abbot v R [1976] 3 ALL ER 140 – duress not a defence to principals to murder.
not a defence to murder- R v Howe & Bannister Lord Hailsham LC:
duress is no defence to attampted murder- R v Gotts, R v wilson