Duress as a defence to a crime

What is duress?

Duress is a defence that may be available where a defendant is charged with a criminal offence but they acted only because they were threatened with death or serious personal injury. Duress is a common law defence and may take the form of duress by threat and duress by circumstances.

When is the duress defence available?

The defence of duress is a general defence, which means it is a defence to any crime including manslaughter. However, it is unavailable as a defence to a charge of murder, accessory to murder or attempted murder. The rationale is that if duress could be a defence to murder, 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 murder, accessory to murder or attempted murder.

How is duress established?

There is a two-part test to establish the defence of duress – a subjective and an objective limb.

The subjective limb: the question is, was the defendant compelled to act as they did as a result of what they honestly believed were circumstances in which their life was in immediate danger, or they were at risk of serious physical injury?

The objective limb: if the subjective limb is satisfied, the question is then: would a sober person of reasonable firmness, sharing the characteristics of the defendant, have responded in the same way to such threats?

The jury should be directed by the judge to disregard any evidence of the defendant’s intoxicated state when considered whether they acted under duress. That said, a separate defence of intoxication can be raised.

What characteristics of the defendant are considered?

Case law has indicated the various characteristics and factors that will be taken into account when the defence of duress is raised. The leading case is Bowen (1996) which lists the characteristics that can be taken into account including age, sex, pregnancy, serious physical disability, and a recognised mental illness or psychiatric condition.

However, having a low IQ, or being abnormally suggestible and vulnerable are not characteristics that can be taken into account. In addition, characteristics that are the result of self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be considered.

How is the test for duress applied in practice?

How immediate was the threat?

The threat must have been sufficiently great and compelling as to overbear the ordinary powers of human resistance. A lack of immediacy will not automatically ban the defence of duress because the surrounding circumstances will play a big part in whether the immediacy of the threat should allow the defence of duress. Note that a threat of a ransom demand is insufficient to succeed with the defence of duress.

Was there opportunity to seek police protection?

If someone has a chance to seek police protection and they fail to do so, they may not be able to rely on the defence of duress. When considering whether the defendant took (or was able to take) reasonable steps to seek police protection, the jury should consider their age and circumstances.

What if there were mixed motives?

In some cases, it may be questionable whether or not the defendant had mixed motives in committing the crime. If the defendant committed a crime because of duress and for financial gain, they may not be able to rely on the defence of duress by threat. However, where there are mixed motives, the defence of duress may succeed if it can be shown that defendant would not have acted in the way they did had it not been for the threats to life.

What if you voluntarily expose yourself to threats?

The defence of duress by threat is unavailable if the defendant voluntarily joined a criminal gang, or associates with individuals known for violence and criminal activities, with the risk they may pressure them into committing a crime.