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.
‘Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be relevant’.
Psychiatric evidence showing that you suffering from a recognised psychiatric injury that will leave you more susceptible to threats can be considered to aid the jury in reaching a decision as to whether the reasonable man suffering the same psychiatric illness may act in the same way.
How to apply the test for duress by threat ?
How immediate was the threat?
The threat must have been sufficiently compelling to destroy a person’s will. The lack of immediacy will not automatically ban the defence of duress, the surrounding circumstances will play a big part in whether the immediacy of the threat should allow or not the defence of duress.
Opportunity to seek police protection?
If someone has a chance to seek police protection and they fail to take this opportunity should not be able to rely on the defence of duress. The jury when considering whether the defendant took the reasonable steps to ask or search for police protection or may be have not taken those steps should have consideration for a person’s age and circumstances.
Whether or not a person’s has mixed motives is concerned with whether there was more than one reason for them committing the crime in question. If a person committed a crime due to duress as well as there being a financial gain for example, they will not be able to rely on the defence of duress by threat as he may have committed the crime for the other reason if the threat was not present.
Will Duress by threat be a defence where you voluntarily expose yourself to threats?
The defence of Duress by threat is unavailable if the person seeing to rely on the defence voluntarily joins a criminal gang, or associates with individuals know for violence and criminal activities, with the chance that they may pressure you into committing a crime whether immediately or in the future.
When is duress by threat available?
The Defence of duress by threat is considered a general defence, which basically means it is a defence to any crime including manslaughter. However, Duress by threat is unavailable as a defence to murder, accessory to murder or attempted murder.
Why is duress unavailable as a defence to murder, accessory to murder or attempted murder?
All people should be encouraged to act heroically. If duress was an accepted defence to murder then this would withdraw the protection of the criminal law from innocent members of society and cast a cloak of protection on the person who committed the crime of murder, accessory to murder or attempted murder.