Duress in English criminal law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another.
This is an exception to the general principle of criminal law that those who choose to break the law are held responsible for the crimes that they commit. The rationale of the exception is that the choice is not wholly voluntary. The Law Commission (1977 at paras 2.44-2.46) recognised the logic that, if the defence was going to be allowed at all, it should be applied to all offences. But this recommendation has not been adopted because it is felt that, in the case of the most serious crimes such as murder, no threat to the defendant, however extreme, should excuse commission of the crime (Elliott; 1989). The defence is also open to abuse. Smith (1994 at p584) commented:
"...duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for the prosecution to investigate or subsequently to disprove."
This approach has been adopted by the judiciary, most notably by the House of Lords in R v H 2004 2WLR 335[1]:
"Defences that the accused has been set up and allegations of duress, which used to at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care."
The prosecution's difficulty was at one time the greater when the issue of duress had not been raised by the defence until the trial was under way. To counter these problems, the Law Commission (1993 at paras 33-34) recommended that the burden of proof be shifted to the defendant to establish duress on the balance of probabilities. Since then there has been no specific enactment relating to duress but Section 5 of the Criminal Procedure and Investigations Act 1996, c.25, provides that the defence must serve on the Court and the prosecution the nature of the accused’s defence in general terms, and the matters in issue.[2] This would seem to apply to the defence of duress, and in R v Tyrell and others 2004 EWCA Crim 3279, there had been a specific, although late, reliance upon the defence.
A rigorous analysis of the doctrine of duress is difficult because it is invariably reliant upon the particular facts in a given case, and there is usually an overlap between duress and the defence of necessity. See, for example, comments by Lord Woolf CJ in R v Shayler[3]at Para. 42.
In R v Singh 1973 1 AER 122, the Court of Appeal held that a threat to expose the defendant's adultery would not be sufficient threat to overbear the will of an ordinary person. For these purposes, the defendant must have a reasonable and genuinely held fear of death or serious harm, usually in the form of specific threats directed at the defendant, his immediate family or someone for whom he feels responsible. In R v Graham 1982 1 AER 801, the threat was immediately and directly made to the defendant. In the Australian case of R v Hurley & Murray 1967 VR 526 escaped criminals compelled H to dispose of two corpses by holding his wife hostage, such that the threats to her "would have been operative during the entire period of his absence" and "his only concern must have been for the safety of the woman". Following R v Conway 1989 QB 290 and R v Wright 2000 Crim. LR 510, (where the threat related in part to the defendant's boyfriend) the specimen direction of the Judicial Studies Board suggests that the threat must be directed, if not to the defendant or a member of his immediate family, to a person for whose safety the defendant would reasonably regard himself as responsible which, if strictly applied, would be consistent with the rationale of the duress exception.
There must be a direct causal link between these threats and the defendant's decision to break the law. Thus, the defendant's normal inhibitions must be overwhelmed by his or her belief in the efficacy of the threat. This belief must be reasonable and genuine, i.e. the test is both subjective and objective in that the defendant's will must actually have been overwhelmed, and a person of ordinary courage would also have felt compelled to act as directed.
The circumstances in which the threats were made must also have offered no reasonable opportunity for evasive action. But, taken together, the questions of causation and immediacy have created a weakness in the limitations placed on the defence. In R v Hudson and Taylor 1971 2 QB 202, two young women who had witnessed a serious assault were intimidated and refused to identify the attacker in court. They were charged with perjury but allowed a conditional discharge. The court was prepared to allow leniency because these women lived in a community where physical retaliation for co-operating with the police was routine, and they had no reasonable means, given their age, experience, and lack of physical strength, of avoiding the implementation of the threat. This weakened the requirement that the threat's implementation must be so imminent that the defendant had to decide in that moment whether to break the law, and it has given rise to cases such as R v Cole 1994 Crim. LR 582 in which a man robbed several building societies to avoid the threats of a debt collector. Simon Brown LJ. at p583 held that the peril relied on to support the plea of necessity lacked imminence, and the degree of directness and immediacy required of the link between the suggested peril and the offence charged. The one making the threats had not nominated the crimes to be committed by the defendant. He had simply indicated that he wanted the defendant to repay the debt which would not necessarily involve the commission of an offence.
In R v Bowen 1996 2 Cr. App. R. 157, the Court of Appeal held person with a low IQ, short of mental impairment or mental defectiveness, was not necessarily less courageous or less able to withstand threats and pressure than an ordinary person. The relevant test (laid down in R v Graham 1982 1 AER 801) had two elements:
(i) Was the defendant impelled to act as he did because he feared death or serious physical injury?
(ii) If so, did he respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done?
Stuart-Smith LJ. gave comprehensive guidance as to which characteristics might be relevant in the jury's consideration: age, sex, physical disability or recognised mental illness might limit a person's ability to act in self-defence, but the fact that the defendant was more vulnerable, timid or susceptible to threats than a normal person were not characteristics of the reasonable person. Also excluded would be self-induced incapacity due to drunkenness or drug-taking (R v Flatt 1996 Crim LR 576).
There have been an increasing number of cases pleading duress arising from the general pressure of circumstances, whether arising directly from human action or not. To that extent, this subset of duress seeks to borrow some of the language of necessity. In R v Conway (1988) 3 AER 1025, the Court of Appeal dealt with a charge of reckless driving where the defendant had fled from police officers. His passenger had recently been attacked by a man with a shotgun, and screamed at the defendant to "drive off" when he saw the plain-clothed officers running toward the car. The court held that to establish "duress of circumstances", it was necessary for him to drive as he did believing it necessary to avoid death or serious bodily injury to himself or another person. As evidence, the accused must be able to point to an "objective danger" or at least satisfy the requirement of reasonable belief. As a gloss, Woolf LJ. noted that :
"Whether 'duress of circumstances' is called 'duress' or 'necessity' does not matter. What is important is that, whatever it is called, it is subject to the same limitations as the 'do this or else' species of duress."In R v Martin (1989) 1 AER 652 the defendant who drove while disqualified, claimed that it was necessary for him to drive his son to work, because he feared that his mentally ill wife might commit suicide if her son did not arrive at work on time. Simon Brown J. defined the defence as pressure on the accused's will arising either from the wrongful threats or violence of another, or from other objective dangers threatening the accused or others. The requirements were that:
(i) "from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury"; (ii) a jury should determine whether the accused was "impelled to act as he did because of a result of what he reasonably believed to be the situation, he had good cause to fear ...death or serious physical injury"; and (iii) a jury should also determine whether "a sober person of reasonable firmness, sharing the characteristics of the accused, [would] have responded to that situation" in the same manner.Thus, in DPP v Bell (1992) Crim. LR 176 the accused successfully pleaded duress of circumstances to driving with excess alcohol because, following an incident in a pub which caused him to fear for his physical safety, he escaped in his car, only driving a short distance to safety and then abandoning the criminal activity as soon as reasonably possible. While in R v Baker and Wilkins (1997) Crim LR 497 (CA) a child's mother and another broke down the door to the father's house to recover the child from his possession. The action was being taken to defend the child so three defences were raised:
The danger must be such that the accused cannot reasonably, taking into account any of his or her relevant characteristics, be expected to act otherwise. In R v Pommell (1995) 2 Cr. App. R. 607 the defendant was charged with possession of an illegal firearm, a sub-machine gun, which he claimed to have taken from another person in order to prevent that other from using it and to hand it to the police. There was some doubt as to how long the weapon had been in his possession, which resulted in his conviction because the jury decided that he had not acted as soon as was reasonable in the circumstances. In R v Abdul Hussain and Others (1999) Crim. LR 570 considered the requirement that the threat be imminent and operative even though its execution is not immediate. The defendants hijacked a plane in order to escape death at the hands of the Iraqi authorities. The court held that the defence was available as long as the crime was a reasonable and proportionate response to an imminent peril of death or serious injury. The threat need not be immediate, only imminent.
The most recent cases have involved situations where the defendant: