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Lesson Objectives:All learners will be able to:• To be able to define duress.• Match case names to facts.Most learners will be able to:• To be able to list 4 cases and apply the case-law in regard to duress as a defence.Some learners will be able to:• To be able to list 7 cases and apply it in regard to duress as a defence.• To be able to apply duress to problem questions.
DURESS What does this term mean to you?In what situations do you think duress can arise?The issue of duress arises where the defendant is threatened that he must commit a criminal offence or suffer physical injury or injury to his family. This type of duress is often referred to as duress by threats.
Attorney-General v Whelan  Murnaghan J(Irish CCA) – Duress is a defence because ‘"…threats of immediate death or serious personalviolence so great as to overbear the ordinarypowers of human resistance should be acceptedas a justification for acts which would otherwisebe criminal.“
Duress is a excusatory defenceA defendant who commits a criminal offenceunder duress is excused from liability because heis not held to be blameworthy enough to warrantcriminal sanction. It is a complete defence.Thus, if pleaded successfully, the defendant isacquitted. The defendant bears a evidentialburden in relation to duress; he must adducesome evidence of duress in order to make theissue a live one. The burden of proof is on theprosecution to disprove duress beyondreasonable doubt.
Which offences is duress a defence to?Duress is a general defence – it is available in respect ofmost offences. However, duress is no defence to charges oftreason, murder (Howe ) or attempted murder (Gotts). Duress is no defence to a person who is chargedwith murder as the principal (Abbot v R ) or as asecondary party (Howe).The law places importance on the sanctity of life andprotection of the lives of individuals. Therefore, it does notexcuse a defendant from committing murder or attemptingto do so, even where he was under severe pressure ofthreats to his own life or those of his family.
Howe  AC 417The defendants participated in one killing assecondary parties , but were the principals inanother killing. They claimed that they wereacting out of fear that they would be seriouslyharmed or killed by a man named Murray, whoorganised the killings. The defendants wished toplease duress. The trial judge ruled that duresswas a defence to secondary parties to murder,but no defence to principals of murder. The HOLoverruled this stating duress was NO DEFENCE tomurder, irrespective of if the person was principalin first degree or second degree.
Gotts  2 AC 412The defendant was charged with the attempted murder of his mother. Heclaimed that his father had threatened to shoot him unless he killed hismother, and wished to plead duress. The trial judge ruled that duress wasnot available to a charge of attempted murder. As a result of thisruling, the defendant pleaded guilty and appealed on the ground that thetrial judge’s direction had been wrong. The HOL dismissed the appeal andconfirmed there is no defence of duress to attempted murder.While the mens rea for attempted murder is an intention to kill, a lesserintention to cause GBH is sufficient for a charge or murder. Lord Jaunceyquestioned whether there is ‘logic in affording the defence to one whointends to kill but fails, and denying it to on who mistakenly kills intendingonly to injure?’Thus the rationale for concluding that a defendant charged withattempted murder cannot rely on duress, is because the defendant’s stateof mind may indeed be more serious and inexcusable than that of adefendant charged with murder.
R v Graham D was living with his wife and a homosexualman, King, who was D’s lover. King was a violentman who was jealous of D’s wife. He suggestedthat they kill her. King placed an electrical flexaround the wife’s neck and told D to pull on theother end. He did so and the wife died. D wascharged with murder and pleaded duress. Heargued that he only acted out of fear of King. Hewas convicted and appealed. The CA upheldconviction because the threat made by King wasnot sufficiently grave to raise duress.
Lord Lane CJ gave the leading judgement and stated that the jury should consider the following two questions:1. Whether or not the defendant was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger. (Subjective test)2. Would a sober person of reasonable firmness sharing the defendants characteristics have responded in the same way to the threats? (Objective test). The subjective and objective elements are often referred to as ‘The Graham Test’.
The Graham TestThe subjective test - Immediate/imminent:R v Hudson and Taylor  - two young girls who were charged with perjury after they gave evidence in respect of an incident they had witnessed in a pub. Both defendants were called to give evidence against the man charged, X, but both failed to identify him in court. They argued that Hudson had been approached by X’s friends who threatened her with physical injury if they gave evidence. The trial judge ruled that duress was not available because the girls were protected by the police at the time. The Court of Appeal held the girls were not guilty of perjury, stating that it should have been left to the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the evidence – were the threats still imminent?
The Graham Test‘The reasonable person’ – objective test.R v Bowen – leading case; D was convicted of the offence of obtaining services by deception. He was of low IQ, with a reading age of 7 years old, and was abnormally suggestible and vulnerable. The defendant claimed that he had been threatened by two men that they would throw a petrol bomb at his house unless he committed the offence. It was held that this not a relevant characteristic since it did not make those who had it less courageous or less able to withstand threats and pressure than an ordinary person. The court of appeal held that the only relevant characteristics were the age, and possibly the sex of the defendant, pregnancy (where the threat of harm is to the unborn) serious physical disability, and a clinically recognised psychiatric condition. Therefore it was held that the question could not be ‘Would a sober person of reasonable firmness sharing the defendants ‘low IQ’ have responded in the same way to the threats?’. Low IQ was not a relevant characteristic.
Violent gangs The defence of duress is not available to persons who commit crimes as a consequence of threats from members of violent gangs, which they have voluntarily joined.R v Sharp  - D joined a gang who carried out a series of armed robberies at sub-post offices. In the last of these robberies the sub postmaster was shot and killed by X.Lord Lane CJ;• “…the defence of duress was not available to a person who voluntarily and with knowledge of its nature joined a criminal organisation or gang, which he knew might bring pressure on him to commit an offence, and was an active member when he was put under such pressure.”
GangsR v Shepherd  – D voluntarily joined a gang of shoplifters. They were not a violent gang and the defendant did not know them to se violent methods. However, the defendant was threatened with violence, as a result of which he committed burglary. The trial judge followed previous authorities and refused to leave duress to the jury. On appeal, the Court of Appeal ordered a retrial and held that duress should have been available to the defendant on this case. The court distinguished on the grounds that the gang the defendant had joined was not known to use violence. Held not guilty.
R v Hasan The defendant worked as a driver for a womanwho was involved in prostitution. The woman’sboyfriend, S, was a drug dealer and a violentman. The defendant was charged with aggravatedburglary. He claimed that he had acted underduress having been coerced into committing theburglary by S. The trial judge directed the jurythat the defence of duress would not be availableto the defendant if they found that by associatinghimself with S, he had voluntarily put himself in aposition in which he knew that he was likely to besubjected to threats. The HOL confirmed this.
Activity Having gone through the definitions ofduress, the tests and the case-law, identify the elements required for a defence of duress. There are 7 points. (5 mins)
The elements required for a defence of duress:1. A threat from another person2. Of serious personal violence3. Against the accused or another person4. Instructing the accused to commit a crime5. Which causes the accused to commit any crime but not murder or attempted murder6. Where another person of reasonable firmness would have acted the same7. And the threat was not from a fellow member of a violent gang.
Problem questionMildred and John, two law students, decide to go to the SU Bar fora few drinks after their finals. After several drinks, Mildredconfesses to John that she cheated in her criminal law exam. Johnthreatens to tell their lecturer unless Mildred steals the takingsfrom behind the bar. Mildred refuses at first, but John makesfurther threats to reveal Mildred’s homosexual inclinations onFacebook and to send someone round to beat her up. Frightenedthat John will carry out his threats, Mildred steals £100 from behindthe bar. On her way out of the SU Bar, Mildred is approached byBert, a security guard, who has witnessed the theft. Fearing thatJohn has sent Bert to find Mildred, she strikes Bert on the head withher textbook, causing him serious injury.Discuss whether Mildred has any defences. Use case-law tosupport your answer.