Duress
- Duress by threats: has someone threatened D into committing the offence?
- Duress is no longer a defence to murder
- Does D believe the circumstances call for him to commit an offence, in order to prevent death/serious injury occurring?
- Carrie is trying to escape a mudslide by crossing a bridge, only to find the bridge blocked by Pete who is frozen with fear. Carrie punches Pete unconscious and drags him across the bridge to safety.
- If you successfully use duress as a defence, you are not blameworthy at all for the murder.
- Was D, or may he have been, impelled to act as he did because, as a result of what he reasonably believed X had said or done, he had good cause to fear that if he did not so act, X would kill him or cause him serious physical injury?
- If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of D would not have responded to whatever he reasonably believed X said or did by taking part in the killing?
- Did D reasonably and honestly believe there was an imminent threat against him (death/serious injury) or someone for whom he regarded himself as responsible?
- Would a reasonable person sharing D's characteristics have acted as D did?
- Was D impelled to act? Duress isn't normally available to D who voluntarily associates with those who have put him under duress to commit an offence.
- Sharp 1987: D was part of a gang of robbers who carried sawn-off shotguns. D claimed he was told he would have had his head blown off if he didn't participate in the robberies. It was D's decision to join the gang - he voluntarily associated himself with the gang that he knew to be dangerous.
- Shepherd 1988: D was part of a group of shoplifters who went round newsagents and stole cigarettes. D voluntarily joined the group. There was no violence, but claimed that he wanted to withdraw from the gang, and that when he wanted to leave, he and his family were threatened with violence. The defence shouldn't have been withdrawn from the jury.
- Z/Hasan 2005: D associated himself with a pimp who had boasted about killing three people.
- Andy joins a gang called the Hyde Park Hackers. If the gang leader threatens to stab Andy if he doesn't steal a car, could Andy use the defence of duress if charged with theft? Depends on whether he voluntarily associated himself with the group.
- Emma joins a knitting group. At the third knitting meeting she is threatened with serious injury if she doesn't poke a rival knitting group member's eyes out. Fearing for her safety, she does so. Can she rely on duress as a defence to s.18? Yes.
- Safi 2004: Feared the Taliban
- Hasan 2005: D has to reasonably and genuinely believe that there is a threat of immediate/almost immediate harm.
- Public policy concerns about the defence from Safi
- Valderrama-Vega 1985: D had imported 2 kilos of cocaine because he and his family were threatened by a mafia-style organisation. The mafia had also said they would expose his homosexual tendencies. If the main concern was death/serious injury to him or his family, he'd be able to rely on duress.
- Shayler 2001: D had worked for the MI5 for five years. As a part of his job, he signed a contract on the Official Secrets Act saying he wouldn't give any information away. D gave information to the papers after he'd left the MI5 because he wanted to highlight to the public to be very significant problems with the protection of the country. He claimed duress as a defence because he thought the MI5 was that bad at their job that they were threatening the lives of the public. It was held that you yourself don't need to fear injury but it needs to be an identifiable group of people you are responsible for: you need to broadly specify for the people. D was saying that the whole country was at risk.
- Abdul-Hussain 1999: Shiite Muslims from southern Iraq living in Sudan who faced deportation back to Iraq. They were vocal in their opposition to Suddam Hussein. Was there evidence of fear operating on the minds of the Ds at the time they hijacked the plane? The jury ought to have been left to determine whether their actions were reasonable.
- Heath 2000: D (heroin addict) had a debt with a dealer. Had to deal drugs to write off the debt. D was charged with possessing class B drug with intent to supply, trial judge ruled that the defence was unavailable as D hadn't acted like he thought harm was imminent. AC held that D had several safe avenues of escape.
- Cole 1994: D robbed a bank to get money to clear debt; debtor threatened to harm child. This was financial duress. Conviction upheld.
- D will not be excused if the reasonable person, sharing the characteristics of D, would not have acted as D did.
- Graham 1982: D was convicted of his wife's murder. He was living with his wife and his gay lover. The wife and lover (King) had disputes. King was violent. D phoned his wife and told her he'd attempted suicide. The wife came over and he pretended to be dead, pounced on wife when she went up to him and strangled her to death.
- Defence should be entirely subjective?
- There are clear public policy reasons for limiting the defence.
- Hold defendants to a certain standard of behaviour.
- If we are talking about trying to ensure people meet certain requirements to use the defence, what characteristics do we give the reasonable person?
- Bowen 1997: D obtained numerous goods by deception. D had been threatened on behalf of two men who said that if he didn't, he and his family would be petrol-bombed. D suffered from a very low IQ, had a reading age of about 6 years, didn't understand reasoning, and was unlikely to understand police questions.
- Do you limit characteristics? You take into account age, sex, pregnancy, serious physical disability and recognised mental illnesses: not low intelligence.
- Duress is not a defence to murder!!
- Lynch 1975: Drove car of members of the IRA. Several gunmen in the car. Didn't know exactly what they were going to do, but knew of the nature. IRA members shot and killed a police officer. D was convicted of murder (joint enterprise). D appealed: duress was a defence to being an accessory to murder.
- Mens rea for s.18: intention to kill or cause GBH.
- Intention to do GBH and the person DOESN'T die: can use duress as a defence.
- Intention to do GBH and the person DOES die: can't use duress as a defence.
- The law is 'not an exact science' - there is not consistency in the law.
- Howe 1987: Court took the view that heroism is possible. Criminal law is there to protect the innocent people: whose life is worth more? It is not for the individual to decide. Considered whether they could use it as a partial defence to murder. They then took the view that this was inconsistent.
- Gotts 1992: attempted murder case. No justification in logic, morality or law to afford the defence to someone accused of attempted murder. Duress is said to be in dire need of reform (Law Commission report 2006).
- Arguments against allowing the defence to murder: (1) It's never existed as a defence to murder; (2) murder is a 'special' crime - has such catastrophic effects that it should not be a defence; (3) whatever D's motive, they nevertheless intended V's death, and it's not for them to decide whose life is worth more; (4) it is so significant in social policy, and thus a job for Parliament to decide.
- Arguments for allowing the defence to murder: (1) it's not enough for moral blameworthiness to be a mitigating factor at sentence; (2) not all murders are of comparable heinousness; (3) courts have a role to play in defining the law clearly; (4) murder might be a 'special' offence, but other defences are available (e.g. necessity and self-defence), so why not?
- Wilson 2007: 13 year old boy, whose father was involved in a dispute with the woman in the flat upstairs. Father told D to get him an axe. D suspected that something wasn't right. Because D's father was a threatening individual, D gave him the axe. The father then axed the woman to death. D should've been allowed to use the defence because it was his father who brought him up in the violence. D couldn't rely. Criminal liability age is comparably low.
- (5) You might not expect people to behave heroically; (6) lack of heroism might not always be motivated by selfishness; (7) "... the law would be censorious and inhumane which did not recognise the plight of a person who perhaps suddenly finds his life in jeopardy unless he submits and obeys."