Topic 11
Topic 11
Duress and
necessity
Topic 11
Duress
Duress
Topic 11
Duress
Introduction
Duress is a complete defence for most crimes. The burden
of proof is on the prosecution to disprove that the
defendant was under duress.
Duress is not available for the offence of murder (R v
Howe, 1987), nor is it a defence for attempted murder (R
v Gotts, 1991).
There are two types of duress: duress by threats and
duress by circumstances.
Topic 11
Duress
Duress by threats
For the defence of duress by threats, the defendant has
both the actus reus and mens rea for the crime, but
conviction is escaped because his or her will is overborne
by personal threats or by threats to family members or
people for whom the defendant is responsible. The ability
to use this defence has been reduced since the case of R v
Hasan (2005).
Topic 11
Duress
R v Graham (1982)
In R v Graham (1982) the defendant lived with his wife and
homosexual lover. His lover threatened him into killing his wife. The
Court of Appeal did not regard the threats as sufficient to constitute
the defence of duress. In this case, Lord Lane devised a two-part
test for duress by threats (known as the ‘Graham test’), with both a
subjective and an objective element.
For duress of threats to succeed, the jury needs to consider the two
key questions raised by Lord Lane CJ:
• Was the defendant impelled to act in the belief that he or she or
others would be killed or physically injured if he or she did not
comply with the threats?
• If so, would a sober person of reasonable firmness sharing the
same characteristics of the defendant have acted in the same way?
Topic 11
Duress
Seriousness of the threats
Threats of death and personal injury are necessary for the
defence of duress.
R v Valderrama-Vega (1985)
The defendant was caught smuggling cocaine from Colombia. He
claimed he was under duress from drug barons in Colombia who
threatened to kill him and his family and to expose the
defendant’s homosexuality. The defendant would also face
financial difficulties if he did not help smuggle the drugs. The
court held that only the threats to him and his family were able
to afford the defence of duress.
Topic 11
Duress
Unavoidable and imminent threat
The defendant must not be able to avoid the threat. This
means that he or she cannot use the defence of duress if
he or she has time to inform the police or to avoid the
crime that he or she has been threatened to do.
It does not matter if there was no actual threat, as long as
the defendant honestly thought that there was an
imminent threat. R v Hasan (2005) stated that the mistake
of the threat must be honest and reasonable.
Topic 11
Duress
Self-induced duress
The defence of duress will not be available where the
defendant has voluntarily associated with criminals. The
defendant should have reasonably foreseen that he or she
might be forced to commit crimes by threats or violence (R
v Hasan, 2005).
Topic 11
Duress
R v Hasan (2005)
The defendant was the driver for a prostitute whose
boyfriend threatened him with violence if he did not
commit a burglary. The defendant was caught and tried to
use the defence of duress. The House of Lords did not
allow the defence, as his duress was self-induced,
regardless of whether he had foreseen that he might be
forced to commit crimes.
All that is necessary is that the defendant foresaw or it
was reasonable to foresee that he or she might be forced.
Topic 11
Duress
R v Boden (1996)
The court will take into account the age and sex of the
defendant, as this may affect his or her ability to resist
pressure. The jury can also take into account a defendant’s
physical disability or mental illness.
In R v Boden, the defendant was of low IQ and it was
argued that this characteristic made him more susceptible
to threats. The Court of Appeal did not allow this to be
taken into consideration.
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Duress
Duress by circumstances
Like duress by threats, this type of duress requires fear of
imminent death or serious injury (R v Baker and Wilkins,
1997). It has mainly been used as a defence for driving
offences, where defendants claim to have felt forced to
commit a driving offence because of the circumstances
that they found themselves in, rather than because they
had been threatened to do so. The defence has been
extended to other crimes, e.g. possession of a firearm in R
v Pommell (1995) or hijacking in R v Abdul-Hussain
(1999).
Topic 11
Duress
R v Conway (1989)
The defendant was in his car with a passenger when two
plain-clothed policemen started running towards them. Not
knowing that they were policemen, the defendant and the
passenger feared that they were in immediate threat of
personal injury because the passenger had been recently
threatened as such. The defendant drove off at high speed.
The Court of Appeal quashed the conviction for reckless
driving, as the judge should have allowed the jury to consider
duress of circumstances as a possible defence at the trial.
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Necessity
Necessity
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Necessity
Case law (1)
The defence of necessity is very similar to duress of
circumstances and was considered not to exist until the
case of Re A (2000).
The case of R v Dudley and Stephens (1884) did not allow
the defence for murder, when four sailors were
shipwrecked and had been floating miles from land for 20
days. They killed and ate the cabin boy who had become
unconscious. Their charge of murder was upheld and the
defence of necessity (the fact that they would have died if
they had not eaten the victim) was not allowed.
Topic 11
Necessity
Case law (2)
A later case also did not allow the defence of necessity, as
Lord Denning was concerned that people would use the
defence too much, e.g. if they were hungry it would be
necessary for them to steal food. In Southwark London
Borough Council v Williams (1971), a family that was
evicted from an empty council house could not plead the
defence of necessity in that the members would be
homeless if they were not allowed to squat.
Topic 11
Necessity
Re A (2000)
The Court of Appeal established the defence of necessity
when it authorised the separation of conjoined twins Jodie
and Mary. The court was involved in this case as the
conjoined babies would not survive if they were not
separated. It was known, however, that if they were
separated, one of the babies would die. The parents of the
babies did not want them to be separated but the court
authorised the operation.
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Necessity
Test for necessity
The test for necessity requires that an act was necessary
to avoid inevitable evil, no more was done than was
necessary, and the evil inflicted was not disproportionate
to the evil avoided.
Topic 11
Evaluation: duress and necessity
Evaluation of
duress and
necessity
Topic 11
Evaluation: duress and necessity
Civil law and similarity of defences
The defence of necessity is criticised because the leading
case (Re A, 2000) involved the civil law. Furthermore,
because it is so similar to duress of circumstances, many
consider that it need not be a separate defence. Lord Woolf
thought that necessity and duress of circumstances were
different words for the same thing.
However, the case of Re A illustrates one difference, in that
necessity is available as a defence for murder whereas duress
is not.
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Evaluation: duress and necessity
Self-induced duress
The case of R v Hasan (2005) wanted to restrict the use of the duress
defence, so that only people who really deserve it can use it. The test
for deciding if the defendant voluntarily exposed himself or herself to
risk, and therefore had self-induced duress, is objective and could mean
that under this defence no one can associate with a criminal of the offchance that he or she will be threatened.
Baroness Hale did not agree with the majority in the House of Lords, as
she feared that victims of domestic violence would be regarded as
having self-induced duress if their violent partners forced them to
commit a crime. Baroness Hale thought that the test for whether the
duress was self-induced should be subjective, in that the defendant
foresaw a risk that he or she may be forced to commit a crime.
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Evaluation: duress and necessity
Duress, murder and
attempted murder
The fact that duress is not available for the offence of
murder (R v Howe, 1987) and attempted murder (R v
Gotts, 1991) has been criticised by the legal academics
Smith and Hogan. The 1997 Law Commission report
‘Defences of General Application’ also argues that duress
should be a defence to all crimes. In 2005, the Law
Commission recommended that duress should be a
defence to the proposed new crime of first-degree murder.
Topic 11
Evaluation: duress and necessity
The Graham test
The objective nature of the second part of the Graham test
is restrictive, as it does not take into account many of the
defendant’s characteristics. It particularly limits any
mental problems to recognised psychiatric illnesses only.
It has been suggested that it may be better if the defence
of duress were abolished and instead taken into account as
a mitigating factor when the judge decides the sentence.