Two types; duress by threats - D is threatened by another person to commit a
criminal offence. Duress by circumstance - the circumstances in which D
finds themselves forces D to commit the offence. An absolute defence, if
successful, D is acquitted.
Duress by threat:
It is available to all crimes except murder (Howe), attempted murder (Gotts)
and accomplice to murder (Wilson). There must be a nexus link between the
threat made and the crime committed (Cole), the specific type of crime must
be nominated by the person making the threat.
The nature of the threat: threat must be of death or serious injury (Shayler).
Threats to damage or destroy property are not sufficient. A threat to expose
sexuality is not sifficent (Valderama-Vega) but a threat to rape is (Ashley). As
well as threats made to D personally, threats to other people may also support
the defence. However, this is usually restricted to immediate family members
(Martin(Cohn).
Should D have resisted the threat? : The Graham test, subjective and objective
element. 1. Was D impelled to act in the reasonable belief that he or others
would be killed or physically injured if he or she didn’t comply? (Cairns). 2.
Would a sober person of reasonable firmness sharing the same characteristics
as D have acted in the same way? (Bowen). Characteristics taken into account
are age, sex, pregancy, disability, recongised mental illness. Not self imposed
characteristics, effects of alcohol or drugs (Flatt).
The threat to D must be imminent but need not be immediate (Abdul-
Hussain). D will be expected to take advantage of any reasonable opportunity
to escape, if they fail to take it, the defence may fail (Gill).
, Voluntary association with violent crimes: Defence will fail if D knew, or
ought reasonably to have foreseen, the risk of being subjected to threats of
violence through voluntary association with others engaged with criminal
activity (Hasan).
Duress of circumstance:
With duress of circumstance, the threat doesn’t come from a person, but the
situation D is in. Broadly follows the same rules of duress by threat. Applies to
all crimes except murder, attempted murder and accomplice to murder
(Pommell).
Willer - Gang of youths surrounded a car and appeared threatening (reckless
driving), no need for a specific threat as long as D acted out of
compulsion/duress.
Conway - D’s passenger told him to drive off quickly as there was a threat
from two men running towards the car (reckless driving), there need not be a
threat (they were actually policemen) as long as D reasonably believes there
is.
Martin (Cohn) - the threat came from his wife threatening to commit suicide
if he didn’t drive his son to work (driving whilst disqualified), the Graham
test applies to duress of circumstances too.
Pommell - D was convicted of possessing an offensive weapon, He said he
took it to stop the person who has it hurting someone and he was going to
take it to the police stattin the next morning. When the threat has been
withdrawn or becomes ineffective, the person must desist from committing
the crime as soon as he reasonably can.
R v Cairns - drunk man collapsed on bonnet of D’s car, his friends chasing
after them, D braked which threw V off, the D accidentally drove over V, the
criminal offence. Duress by circumstance - the circumstances in which D
finds themselves forces D to commit the offence. An absolute defence, if
successful, D is acquitted.
Duress by threat:
It is available to all crimes except murder (Howe), attempted murder (Gotts)
and accomplice to murder (Wilson). There must be a nexus link between the
threat made and the crime committed (Cole), the specific type of crime must
be nominated by the person making the threat.
The nature of the threat: threat must be of death or serious injury (Shayler).
Threats to damage or destroy property are not sufficient. A threat to expose
sexuality is not sifficent (Valderama-Vega) but a threat to rape is (Ashley). As
well as threats made to D personally, threats to other people may also support
the defence. However, this is usually restricted to immediate family members
(Martin(Cohn).
Should D have resisted the threat? : The Graham test, subjective and objective
element. 1. Was D impelled to act in the reasonable belief that he or others
would be killed or physically injured if he or she didn’t comply? (Cairns). 2.
Would a sober person of reasonable firmness sharing the same characteristics
as D have acted in the same way? (Bowen). Characteristics taken into account
are age, sex, pregancy, disability, recongised mental illness. Not self imposed
characteristics, effects of alcohol or drugs (Flatt).
The threat to D must be imminent but need not be immediate (Abdul-
Hussain). D will be expected to take advantage of any reasonable opportunity
to escape, if they fail to take it, the defence may fail (Gill).
, Voluntary association with violent crimes: Defence will fail if D knew, or
ought reasonably to have foreseen, the risk of being subjected to threats of
violence through voluntary association with others engaged with criminal
activity (Hasan).
Duress of circumstance:
With duress of circumstance, the threat doesn’t come from a person, but the
situation D is in. Broadly follows the same rules of duress by threat. Applies to
all crimes except murder, attempted murder and accomplice to murder
(Pommell).
Willer - Gang of youths surrounded a car and appeared threatening (reckless
driving), no need for a specific threat as long as D acted out of
compulsion/duress.
Conway - D’s passenger told him to drive off quickly as there was a threat
from two men running towards the car (reckless driving), there need not be a
threat (they were actually policemen) as long as D reasonably believes there
is.
Martin (Cohn) - the threat came from his wife threatening to commit suicide
if he didn’t drive his son to work (driving whilst disqualified), the Graham
test applies to duress of circumstances too.
Pommell - D was convicted of possessing an offensive weapon, He said he
took it to stop the person who has it hurting someone and he was going to
take it to the police stattin the next morning. When the threat has been
withdrawn or becomes ineffective, the person must desist from committing
the crime as soon as he reasonably can.
R v Cairns - drunk man collapsed on bonnet of D’s car, his friends chasing
after them, D braked which threw V off, the D accidentally drove over V, the
