1. Duress
29.02.2012

2. Lesson Objectives:
All learners will be able to:
• To be able to define duress.
• Match case names to facts.
Most learners will be able to:
• To be able to list 4 cases and apply the case-law in
regard to duress as a defence.
Some learners will be able to:
• To be able to list 7 cases and apply it in regard to
duress as a defence.
• To be able to apply duress to problem questions.

3. DURESS
What does this term mean to you?
In what situations do you think duress can arise?
The issue of duress arises where the defendant
is threatened that he must commit a criminal
offence or suffer physical injury or injury to his
family. This type of duress is often referred to
as duress by threats.

4. Attorney-General v Whelan [1934] Murnaghan J
(Irish CCA) – Duress is a defence because ‘"…
threats of immediate death or serious personal
violence so great as to overbear the ordinary
powers of human resistance should be accepted
as a justification for acts which would otherwise
be criminal.“

5. Duress is a excusatory defence
A defendant who commits a criminal offence
under duress is excused from liability because he
is not held to be blameworthy enough to warrant
criminal sanction. It is a complete defence.
Thus, if pleaded successfully, the defendant is
acquitted. The defendant bears a evidential
burden in relation to duress; he must adduce
some evidence of duress in order to make the
issue a live one. The burden of proof is on the
prosecution to disprove duress beyond
reasonable doubt.

6. Which offences is duress a defence
to?
Duress is a general defence – it is available in respect of
most offences. However, duress is no defence to charges of
treason, murder (Howe [1987]) or attempted murder (Gotts
[1992]). Duress is no defence to a person who is charged
with murder as the principal (Abbot v R [1977]) or as a
secondary party (Howe).
The law places importance on the sanctity of life and
protection of the lives of individuals. Therefore, it does not
excuse a defendant from committing murder or attempting
to do so, even where he was under severe pressure of
threats to his own life or those of his family.

7. Howe [1987] AC 417
The defendants participated in one killing as
secondary parties , but were the principals in
another killing. They claimed that they were
acting out of fear that they would be seriously
harmed or killed by a man named Murray, who
organised the killings. The defendants wished to
please duress. The trial judge ruled that duress
was a defence to secondary parties to murder,
but no defence to principals of murder. The HOL
overruled this stating duress was NO DEFENCE to
murder, irrespective of if the person was principal
in first degree or second degree.

8. Gotts [1992] 2 AC 412
The defendant was charged with the attempted murder of his mother. He
claimed that his father had threatened to shoot him unless he killed his
mother, and wished to plead duress. The trial judge ruled that duress was
not available to a charge of attempted murder. As a result of this
ruling, the defendant pleaded guilty and appealed on the ground that the
trial judge’s direction had been wrong. The HOL dismissed the appeal and
confirmed there is no defence of duress to attempted murder.
While the mens rea for attempted murder is an intention to kill, a lesser
intention to cause GBH is sufficient for a charge or murder. Lord Jauncey
questioned whether there is ‘logic in affording the defence to one who
intends to kill but fails, and denying it to on who mistakenly kills intending
only to injure?’
Thus the rationale for concluding that a defendant charged with
attempted murder cannot rely on duress, is because the defendant’s state
of mind may indeed be more serious and inexcusable than that of a
defendant charged with murder.

9. R v Graham [1982]
D was living with his wife and a homosexual
man, King, who was D’s lover. King was a violent
man who was jealous of D’s wife. He suggested
that they kill her. King placed an electrical flex
around the wife’s neck and told D to pull on the
other end. He did so and the wife died. D was
charged with murder and pleaded duress. He
argued that he only acted out of fear of King. He
was convicted and appealed. The CA upheld
conviction because the threat made by King was
not sufficiently grave to raise duress.

10. Lord Lane CJ gave the leading judgement and stated
that the jury should consider the following two
questions:
1. Whether or not the defendant was compelled to act as
he did because, on the basis of the circumstances as he
honestly believed them to be, he thought his life was in
immediate danger. (Subjective test)
2. Would a sober person of reasonable firmness sharing
the defendant's characteristics have responded in the
same way to the threats? (Objective test).
The subjective and objective elements are often
referred to as ‘The Graham Test’.

11. The Graham Test
The subjective test - Immediate/imminent:
R v Hudson and Taylor [1971] - two young girls who were
charged with perjury after they gave evidence in respect of
an incident they had witnessed in a pub. Both defendants
were called to give evidence against the man
charged, X, but both failed to identify him in court. They
argued that Hudson had been approached by X’s friends
who threatened her with physical injury if they gave
evidence. The trial judge ruled that duress was not
available because the girls were protected by the police at
the time. The Court of Appeal held the girls were not guilty
of perjury, stating that it should have been left to the jury
to decide whether the threats had overborne the will of the
appellants at the time when they gave the evidence – were
the threats still imminent?

12. The Graham Test
‘The reasonable person’ – objective test.
R v Bowen – leading case; D was convicted of the offence of obtaining
services by deception. He was of low IQ, with a reading age of 7 years
old, and was abnormally suggestible and vulnerable. The defendant
claimed that he had been threatened by two men that they would throw a
petrol bomb at his house unless he committed the offence. It was held
that this not a relevant characteristic since it did not make those who had
it less courageous or less able to withstand threats and pressure than an
ordinary person.
The court of appeal held that the only relevant characteristics were the
age, and possibly the sex of the defendant, pregnancy (where the threat of
harm is to the unborn) serious physical disability, and a clinically
recognised psychiatric condition.
Therefore it was held that the question could not be ‘Would a sober
person of reasonable firmness sharing the defendant's ‘low IQ’ have
responded in the same way to the threats?’. Low IQ was not a relevant
characteristic.

13. Violent gangs
The defence of duress is not available to persons who commit
crimes as a consequence of threats from members of violent
gangs, which they have voluntarily joined.
R v Sharp [1987] - D joined a gang who carried out a series of armed
robberies at sub-post offices. In the last of these robberies the sub
postmaster was shot and killed by X.
Lord Lane CJ;
• “…the defence of duress was not available to a person who
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 an active member when he was put
under such pressure.”

14. Gangs
R v Shepherd [1987] – D voluntarily joined a gang of
shoplifters. They were not a violent gang and the
defendant did not know them to se violent methods.
However, the defendant was threatened with
violence, as a result of which he committed burglary.
The trial judge followed previous authorities and
refused to leave duress to the jury. On appeal, the
Court of Appeal ordered a retrial and held that duress
should have been available to the defendant on this
case. The court distinguished on the grounds that the
gang the defendant had joined was not known to use
violence. Held not guilty.

15. R v Hasan [2005]
The defendant worked as a driver for a woman
who was involved in prostitution. The woman’s
boyfriend, S, was a drug dealer and a violent
man. The defendant was charged with aggravated
burglary. He claimed that he had acted under
duress having been coerced into committing the
burglary by S. The trial judge directed the jury
that the defence of duress would not be available
to the defendant if they found that by associating
himself with S, he had voluntarily put himself in a
position in which he knew that he was likely to be
subjected to threats. The HOL confirmed this.

16. Activity
Having gone through the definitions of
duress, the tests and the case-law, identify the
elements required for a defence of duress.
There are 7 points.
(5 mins)

17. The elements required for a defence
of duress:
1. A threat from another person
2. Of serious personal violence
3. Against the accused or another person
4. Instructing the accused to commit a crime
5. Which causes the accused to commit any crime
but not murder or attempted murder
6. Where another person of reasonable firmness
would have acted the same
7. And the threat was not from a fellow member of
a violent gang.

18. Problem question
Mildred and John, two law students, decide to go to the SU Bar for
a few drinks after their finals. After several drinks, Mildred
confesses to John that she cheated in her criminal law exam. John
threatens to tell their lecturer unless Mildred steals the takings
from behind the bar. Mildred refuses at first, but John makes
further threats to reveal Mildred’s homosexual inclinations on
Facebook and to send someone round to beat her up. Frightened
that John will carry out his threats, Mildred steals £100 from behind
the bar. On her way out of the SU Bar, Mildred is approached by
Bert, a security guard, who has witnessed the theft. Fearing that
John has sent Bert to find Mildred, she strikes Bert on the head with
her textbook, causing him serious injury.
Discuss whether Mildred has any defences. Use case-law to
support your answer.