The Defence of Duress
What is Duress?
Duress is a defence that applies where a person charged with a crime acted in an illegal way because they were threatened with death or serious personal injury if they did not do so. Duress applies in the form of duress by threat and duress by circumstances.
How to establish Duress by threat?
There is a two part test to satisfy to succeed with the defence of duress, this includes a subjective and objective limb.
The subjective Limb: Part 1 of the test for duress by threat
‘Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed the threatening person had said or done, he had good cause to fear that if he did not so act the threatening person would kill him… or cause him serious physical injury?’ (Howe v Bannister)
It is essential that the defendant must genuinely believe in the efficacy of the threat he claims compelled him to act in the way he did. The belief must also be a reasonable belief as well as a genuine one.
The Objective Limb: Part 2 of the test for duress by threat
‘If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would have not responded to whatever he reasonably believed the threatening person said or did by doing as the defendant did?’
This requirement is for the prosecution team to prove that a reasonable man what not have acted in the same way as the defendant given the circumstances. The question then arises as to what characteristics of the defendant can be considered when considering them against the reasonable man and should the jury consider the reasonable man as being a person with the same characteristics?
When you apply the objective limb of the 2 part test for establishing the defence of duress by threat, you should disregard a person’s voluntary intoxication as a characteristic of the defendant to be considered,
What characteristics of the defendant shall be considered?
These considerations have all been addressed in previous cases that have had to take certain factors into account. The leading case that has decided what factors to consider is that of Bowen.
- ‘Pliable, venerable, timid or susceptible to threats’ are not characteristics to be considered against the reasonable man test, and the ordinary reasonable man will not contain these flaws. Characteristics to take into account include, Age, Gender, Pregnancy, Serious physical disability, recognised mental illness or psychiatric conditions. Characteristics that may be relevant to provocation are not necessarily relevant here, in a case of duress. Homosexuality for instance, is relevant to provocation, but cannot be considered in a plea of duress, as there should be no reason to think that homosexuals are less able to resist threats than me or you.
For more information on:
- How to apply the test for duress by threat ?
- How immediate was the threat?
- Opportunity to seek police protection?
- Mixed Motives
- Will Duress by threat be a defence where you voluntarily expose yourself to threats?
- When is duress by threat available?
- Why is duress unavailable as a defence to murder, accessory to murder or attempted murder?