Defences Duress by threats Lesson objectives I will
Defences Duress by threats
Lesson objectives • I will be able to state the definition of the defence of duress by threats • I will be able to explain how the law balances the seriousness of the harm threatened and the offence committed • I will be able to explain how the law deals with the issues of immediacy, means of escape and self-induced threats
Introduction • Duress occurs where the defendant is forced to perform the criminal act by somebody else • It is split into 2 parts – by threats or by circumstances • The courts tend to discuss duress alongside the idea of necessity • The law originally took the view that, because of the level of threat compared to the crime, the defendant’s act became one that, whilst voluntary, was not one that he should be held responsible for • It is a defence available to all crimes except murder – available to all crimes within this unit
• The test for duress can be stated: – 1. was the defendant impelled to act as he did because he feared death or serious physical injury? – 2. if so, did he respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done? This test comes from the case of Graham (1982)
• There a number of aspects of this defence to consider: • The nature of the threat • the threat must be made in connection with the offence committed • The characteristics of the defendant • The effect of intoxication • The immediacy of the threat and possible escape • Self-induced duress
The nature of the threat • The Graham test states ‘feared death or serious physical injury’ – thus, the threats must be as to serious physical harm however minor the offence committed • There is no defence if the threat is to damage or destroy property • What exactly amounts to serious physical injury is unclear – Psychological harm will not suffice – Baker and Wilkins (1997) • Threats that do not form part of the defence are merely mitigating factors that come into play when sentence is being passed
• These include threats to expose a sexual affair or a person’s particular sexual practices • These aspects are to be disregarded in any consideration of duress even when they appear to be increasing the pressure caused by the threat - Valderrama-Vega (1985) • It should also be noted from this case that the threat can be made to a member of his immediate family. The same applies in the case of a person for whose safety he would reasonably regard himself as responsible – approved by Hasan (2005)
The threat must be made in connection with the offence committed • The defence can only be relied on where there is a connection between the threats made to the accused and the offence committed in response to the threats • Thus, it is no defence to say I was threatened with death if I did not burn down a factory to a charge of breaking a totally unconnected person’s arm • Cole (1994) – there must be a connection between the threats made to the accused and the offence committed in response to the threats; there was no sufficient connection between armed robberies committed by the defendant and failure to repay a debt to a money lender • It should be noted that the case does not establish the closeness of the connection required
The characteristics of the defendant • The second leg of the test, ‘If so, did he respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done? ’, requires a consideration of the effect of the threats on the reasonable man sharing the characteristics of the defendant • The key case is Bowen (1996) – this case sets out the characteristics that can be relevant for the defence of duress
• Characteristics that can be put forward: – Age and sex – Physical health or disability – The defendant may be in a category or persons whom the jury may think less able to resist pressure than people not within that category – Psychiatric evidence may be admissible (mental illness, impairment or psychiatric condition) • Characteristics that cannot be put forward: – The mere fact that the accused is more pliable, vulnerable, timid or susceptible to threats than a normal person – Characteristics which may relate to provocation – Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing
The effect of intoxication • If the intoxication is involuntary, then it may be that the defence can be affected by the intoxication as the extract from Bowen (1996) only refers to self-induced abuse
The immediacy of the threat and possible escape • The defendant can only successfully plead the defence of duress where threat was operating on his mind at the time and he feared death or serious harm would follow immediately if he did not commit the crime • Hudson and Taylor (1971) disapproved in Hasan (2005) • Abdul-Hussain (1999) – even though there was a lack of immediacy of the threat, the court decided that the possibility of death could overbear their minds and therefore might be available to the defendant as a defence; this was the case of the Shiite Muslim hijackers avoiding being returned to Iraq
• It should be remembered that duress is an excuse so its existence does not necessarily result in a not guilty verdict; it will depend on the jury’s view • The defendant can always not commit the crime. The defendant is more concerned with avoiding implementation of the threat • Gill (1963)
Self-induced duress • Where the defendant voluntarily puts himself in a position in which he was likely to be subjected to threats made to persuade him to commit an offence, then the defence of duress is less likely to be available • This is consistent with other defences such as intoxication, where the voluntary nature of the defendant’s behaviour usually means he has no defence • This can occur where the defendant joins a criminal group likely to subject him to such threats, or gets involved with crime and thus with other criminals likely to subject him to such threats if he lets them down or came to owe them money • From the defendant’s point of view, the problem often arises when he wishes to end the association
• Sharp (1987) – where a person has 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 put under such pressure, he cannot use the defence of duress • The defendant does not have to join a gang as such, just association with the others can suffice. This is particularly likely when doing business with drug dealers , Heath (2000) and Harmer (2000), although the later case of Hasan (2005) states the situation better
• It can be said that a defendant should not be able to plead duress when he had foreseen or ought to have foreseen that his voluntary association with a known criminal involved the risk of being subjected to compulsion to commit crimes of the kind with which he was charged • The defendant loses the benefit of a defence based on duress if he ought reasonably to have foreseen the risk of coercion • A person voluntarily associating with known criminals should foresee the risk of future coercion – as a matter of policy, the law must discourage association with known criminals
Exam Q
- Slides: 17