Topic 11

1. Topic 11 Duress and necessity

2. Duress Duress

3. Duress Introduction Duress is a complete defence for most crimes. The burden of proof is on the prosecution to disprove that the defendant was under duress. Duress is not available for the offence of murder (R v Howe, 1987), nor is it a defence for attempted murder (R v Gotts, 1991). There are two types of duress: duress by threats and duress by circumstances.

4. Duress Duress by threats For the defence of duress by threats, the defendant has both the actus reus and mens rea for the crime, but conviction is escaped because his or her will is overborne by personal threats or by threats to family members or people for whom the defendant is responsible. The ability to use this defence has been reduced since the case of R v Hasan (2005).

5. Duress R v Graham (1982) • In R v Graham (1982) the defendant lived with his wife and homosexual lover. His lover threatened him into killing his wife. The Court of Appeal did not regard the threats as sufficient to constitute the defence of duress. In this case, Lord Lane devised a two-part test for duress by threats (known as the ‘Graham test’), with both a subjective and an objective element. • For duress of threats to succeed, the jury needs to consider the two key questions raised by Lord Lane CJ: • Was the defendant impelled to act in the belief that he or she or others would be killed or physically injured if he or she did not comply with the threats? • If so, would a sober person of reasonable firmness sharing the same characteristics of the defendant have acted in the same way?

6. Duress Seriousness of the threats Threats of death and personal injury are necessary for the defence of duress. R v Valderrama-Vega (1985) The defendant was caught smuggling cocaine from Colombia. He claimed he was under duress from drug barons in Colombia who threatened to kill him and his family and to expose the defendant’s homosexuality. The defendant would also face financial difficulties if he did not help smuggle the drugs. The court held that only the threats to him and his family were able to afford the defence of duress.

7. Duress Unavoidable and imminent threat The defendant must not be able to avoid the threat. This means that he or she cannot use the defence of duress if he or she has time to inform the police or to avoid the crime that he or she has been threatened to do. It does not matter if there was no actual threat, as long as the defendant honestly thought that there was an imminent threat. R v Hasan (2005) stated that the mistake of the threat must be honest and reasonable.

8. Duress Self-induced duress The defence of duress will not be available where the defendant has voluntarily associated with criminals. The defendant should have reasonably foreseen that he or she might be forced to commit crimes by threats or violence (R v Hasan, 2005).

9. Duress R v Hasan (2005) The defendant was the driver for a prostitute whose boyfriend threatened him with violence if he did not commit a burglary. The defendant was caught and tried to use the defence of duress. The House of Lords did not allow the defence, as his duress was self-induced, regardless of whether he had foreseen that he might be forced to commit crimes. All that is necessary is that the defendant foresaw or it was reasonable to foresee that he or she might be forced.

10. Duress R v Boden (1996) The court will take into account the age and sex of the defendant, as this may affect his or her ability to resist pressure. The jury can also take into account a defendant’s physical disability or mental illness. In R v Boden, the defendant was of low IQ and it was argued that this characteristic made him more susceptible to threats. The Court of Appeal did not allow this to be taken into consideration.

11. Duress Duress by circumstances Like duress by threats, this type of duress requires fear of imminent death or serious injury (R v Bakerand Wilkins, 1997). It has mainly been used as a defence for driving offences, where defendants claim to have felt forced to commit a driving offence because of the circumstances that they found themselves in, rather than because they had been threatened to do so. The defence has been extended to other crimes, e.g. possession of a firearm in R v Pommell (1995) or hijacking in R v Abdul-Hussain (1999).

12. Duress R v Conway (1989) The defendant was in his car with a passenger when two plain-clothed policemen started running towards them. Not knowing that they were policemen, the defendant and the passenger feared that they were in immediate threat of personal injury because the passenger had been recently threatened as such. The defendant drove off at high speed. The Court of Appeal quashed the conviction for reckless driving, as the judge should have allowed the jury to consider duress of circumstances as a possible defence at the trial.

13. Necessity Necessity

14. Necessity Case law (1) The defence of necessity is very similar to duress of circumstances and was considered not to exist until the case of Re A (2000). The case of R v DudleyandStephens (1884) did not allow the defence for murder, when four sailors were shipwrecked and had been floating miles from land for 20 days. They killed and ate the cabin boy who had become unconscious. Their charge of murder was upheld and the defence of necessity (the fact that they would have died if they had not eaten the victim) was not allowed.

15. Necessity Case law (2) A later case also did not allow the defence of necessity, as Lord Denning was concerned that people would use the defence too much, e.g. if they were hungry it would be necessary for them to steal food. In Southwark London Borough Council v Williams (1971), a family that was evicted from an empty council house could not plead the defence of necessity in that the members would be homeless if they were not allowed to squat.

16. Necessity Re A (2000) The Court of Appeal established the defence of necessity when it authorised the separation of conjoined twins Jodie and Mary. The court was involved in this case as the conjoined babies would not survive if they were not separated. It was known, however, that if they were separated, one of the babies would die. The parents of the babies did not want them to be separated but the court authorised the operation.

17. Necessity Test for necessity The test for necessity requires that an act was necessary to avoid inevitable evil, no more was done than was necessary, and the evil inflicted was not disproportionate to the evil avoided.

18. Evaluation: duress and necessity Evaluation of duress and necessity

19. Evaluation: duress and necessity Civil law and similarity of defences The defence of necessity is criticised because the leading case (Re A, 2000) involved the civil law. Furthermore, because it is so similar to duress of circumstances, many consider that it need not be a separate defence. Lord Woolf thought that necessity and duress of circumstances were different words for the same thing. However, the case of Re A illustrates one difference, in that necessity is available as a defence for murder whereas duress is not.

20. Evaluation: duress and necessity Self-induced duress The case of R v Hasan (2005) wanted to restrict the use of the duress defence, so that only people who really deserve it can use it. The test for deciding if the defendant voluntarily exposed himself or herself to risk, and therefore had self-induced duress, is objective and could mean that under this defence no one can associate with a criminal of the off-chance that he or she will be threatened. Baroness Hale did not agree with the majority in the House of Lords, as she feared that victims of domestic violence would be regarded as having self-induced duress if their violent partners forced them to commit a crime. Baroness Hale thought that the test for whether the duress was self-induced should be subjective, in that the defendant foresaw a risk that he or she may be forced to commit a crime.

21. Evaluation: duress and necessity Duress, murder and attempted murder The fact that duress is not available for the offence of murder (R v Howe, 1987) and attempted murder (R v Gotts, 1991) has been criticised by the legal academics Smith and Hogan. The 1997 Law Commission report ‘Defences of General Application’ also argues that duress should be a defence to all crimes. In 2005, the Law Commission recommended that duress should be a defence to the proposed new crime of first-degree murder.

22. Evaluation: duress and necessity The Graham test The objective nature of the second part of the Graham test is restrictive, as it does not take into account many of the defendant’s characteristics. It particularly limits any mental problems to recognised psychiatric illnesses only. It has been suggested that it may be better if the defence of duress were abolished and instead taken into account as a mitigating factor when the judge decides the sentence.