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General defences - duress and duress of circumstances

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History of duress as a defence

For many years it was possible to regard the defence of duress as something of an antiquarian curiosity, with little practical application.


Sir James Stephen, with his immense experience, never knew or heard of the defence being advanced, save in the case of married women, and could find only two reported cases: A History of the Criminal Law of England (1883), vol II, p 106.


Edwards, drawing attention to the absence of satisfactory modern authority, inferred that the defence must be very rare: "Compulsion, Coercion and Criminal Responsibility" (1951) 14 MLR 297.


Professor Hart described duress as a defence of which little is heard: Punishment and Responsibility (1960), p 16.


This has changed.

As Dennis correctly observed in "Duress, Murder and Criminal Responsibility" (1980) 96 LQR 208,

"In recent years duress has become a popular plea in answer to a criminal charge."

The essential elements for a defence of Duress are:

  • a threat from another person

  • of serious personal violence

  • against the accused or another person

  • instructing the accused to commit a crime

  • which causes the accused to commit any crime but not murder or attempted murder

  • another person of reasonable firmness would have acted the same

  • the threat was not from a fellow member of a violent gang

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."

The defendant bears the burden of introducing evidence of duress and it is then up to the prosecution to prove beyond reasonable doubt that the defendant was not acting under duress. If a defence is established it will result in complete acquittal.

Although this case refers to "justification" it is submitted that as a defence it is more properly seen as "excusal" following dicta in R v Lynch [1975] HL and R v Hasan [2005] HL.


It is a complete defence and if successful leads to acquittal.  It more likely than any other defence to depend on assertions which are peculiarly difficult for the prosecution to investigate or disprove.

The defence must be based on threats to kill or do serious bodily harm

If the threats are any less…

…they should be matters of mitigation only.

R v Singh [1973] CA

To expose the defendant's adultery would not be sufficient grounds for duress to succeed.


R v Graham [1982] CA

D killed his wife acting in concert with his homosexual over who lived in the flat with D and his wife. D was taking drugs for anxiety, which made him more susceptible to bullying. One night after both men had been drinking heavily; the lover put a flex round the wife's neck, pulled it tight and then told D pull the other end.
D claimed duress; his fear of his lover.

Held: The model direction to be given to a jury where the defence of duress was raised; subsequently approved by the House of Lords in R v Howe [1987] The jury should consider:

  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)

  3. The jury should be directed to disregard any evidence of the defendant's intoxicated state when assessing whether he acted under duress, although he may be permitted to raise intoxication as a separate defence in its own right.

The subjective and objective elements are often referred to as "The Graham Test".

The reasonable person

Is of average fortitude, i.e. strength and firmness of mind

In R v Hegarty [1994] and R v Horne [1994], the defendants sought unsuccessfully to introduce psychiatric evidence that they were especially vulnerable to threats.

R v Bowen [1996] CA

Low IQ, short of mental impairment or mental defectiveness, was 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 threat must be "immediate" or "imminent"

In the sense that it is operating upon the accused at the time that the crime was committed. If a person under duress is able to resort to the protection of the law, he must do so. When the threat has been withdrawn or becomes ineffective, the person must desist from committing the crime as soon as he reasonably can.


R v Lynch [1975]

Lord Morris;

"[The question is whether] a person the subject of duress could reasonably have extricated himself or could have sought protection or had what has been called a 'safe avenue of escape".

R v Hudson and Taylor [1971] CA

Two teenage girls committed perjury during the trial of X. They claimed that X's gang had threatened them with harm if they told the truth and that one of them was sitting in the public gallery during the trial.

Held: Lord Widgery CJ;

“…the threats … were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night. [the defence] should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence.”

Not guilty

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.

A defendant who joins a criminal association, which could force him to commit crimes, can be blamed for his actions. In joining such an organisation fault can be laid at his door and his subsequent actions described as blameworthy:

R v Sharp [1987] : R v Shepherd (1987) : R v Fitzpatrick [1977] : R v Ali [1995]


There are a number of offences where the courts will not accept duress.

The courts consider duress to be a general defence in criminal law, available for all but a few offences; duress cannot be used as a defence for:


It is unjust to punish a defendant for doing something that a reasonable person would have done in the same circumstances; and the law should encourage a defendant to choose the lesser and avoid the greater evil on grounds of public policy.


Necessity is not a defence

The English courts have never explicitly stated that necessity can be a defence.

The courts are reluctant to recognise a full-blown defence of necessity.

However, in Re: A Children (2000) it was argued that necessity was a factor that the court could rightly take into account.

The statutory defence

Specific statutes give some sort of recognition, but limited to specific offences

The Acts contain what amounts to the defence of necessity, although few people refer to in this way:

Under s.5 (2)(b) Criminal Damage Act 1971 a person has a defence to a charge of criminal damage:

"if he destroyed or damaged or threatened to destroy or damage the property in order to protect property belonging to himself or another..."

s 1(1) Infant Life (Preservation) Act 1929;
s 1(4) Abortion Act 1967.


Necessity at common law
To what extent a defence of necessity prevails in English law is uncertain.
It is possible that duress of circumstances will develop as a defence in its own right, as it has characteristics, which it does not share with duress or necessity.

R v Willer (1986), R v Conway (1989) and R v Martin (1989)

In relation to road traffic offences the courts relented and showed a willingness to recognise the defence of necessity, this is usually referred to duress of circumstances.

Duress of Circumstances

Necessity = duress of circumstances

The defences of duress of circumstances, duress and necessity are inter-related.


The courts do not recognise the defence of necessity as an independent defence, except in its guise as duress of circumstances.


Duress of circumstances is a justification that D has chosen the lesser of two evils.


Several decisions are only explicable on the basis that such a defence does exist

R v Dudley & Stephens (1884)

The court convicted two shipwrecked sailors who killed and ate the cabin boy of murder, but their sentence was commuted to 6 months imprisonment.


Southwark LB v Williams (1971)

The Court of Appeal refused to allow necessity (i.e. homelessness) as a defence in a civil action against squatters.


F v West Berkshire Health Authority (1989)

The House of Lords allowed an operation to sterilise a female patient in a mental hospital

R v Bourne (1939)

A doctor who performed an illegal abortion was acquitted as he did it to save the girl from becoming a "physical and mental wreck"


Leigh v Gladstone (1909)

It was not assault to force-feed a prisoner against her will if it was to save her from injury.


Johnson v Phillips (1975)

A police officer could insist that a motorist reverse up a one-way street, if it was an emergency.


Gillick v West Norfolk & Wisbech Area Health Authority [1986]

A doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health, even though he knew it would assist a man to have unlawful sexual intercourse.

Also here.

R v Kitson (1955) CA

The modern development of the defence of duress of circumstances began in the field of driving offences.

In R v Kitson (1955) D, who had a lot to drink, had been asleep in a car driven by his brother-in-law.  He woke up to find it moving.  No one was in the driving seat. The ignition key was not in the lock.  He steered the car erratically down a hill on to a grass verge.  He said that he did not put on the handbrake because of the greasy surface of the road.  There was evidence that the defendant was drunk and incapable of having proper control of the car.

Held:   On appeal, it was impossible to say that the defendant was not driving the car; the car was subject to his control and direction; therefore, his appeal was dismissed.


He had undoubtedly been driving the car within the meaning of the Act.


The important point being that nobody suggested that he was entitled to rely on a defence of necessity or duress of circumstances.


Thirty years later this potential line of defence first saw the light of day in R v Willer (1986)

D had been convicted of reckless driving, for which he was given an absolute discharge, although his licence was endorsed with ten penalty points, because he had been seen driving his car quite slowly on the pavement in front of a shopping precinct.


He wished to defend the case on the basis that this had seemed to him to be the only way in which he could escape from a gang of 20 to 30 youths who had already banged on his car and threatened to kill him, and were now bent on doing him further violence.


The assistant recorder, however, ruled that a defence of necessity was not available to him on those facts.


On his appeal Watkins LJ said that the court doubted whether the defence of necessity was in point, but the court held, at p 227, that the jury ought to have been left to decide whether

"the appellant was wholly driven by force of circumstances into doing what he did and did not drive the car otherwise than under that form of compulsion, i e under duress".

All the early cases involved motoring offences, and there was some question as to the scope of the defence.

The Court of Appeal eventually allowed the defence to be applied to the more typically "criminal", offence of possessing a firearm without a certificate.

The Crown courts have followed this with several cases allowing the defence for possession of a controlled drug.

Juries have acquitted defendants of possessing cannabis because it was the only drug that could relieve them of the painful symptoms of diseases such as multiple sclerosis.

R v Martin (1989)

"the jury...should be directed to determine these two questions:

first, was the accused...impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result;

second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?"

(Brown J)

Southwark London Borough v Williams [1971]

The Court of Appeal ruled that necessity, in the context of homelessness, could not be a defence to a charge of unlawful possession of property.


The courts refuse to formulate a general defence, but allow it as a defence in certain select situations

R v Pommell [1995]

D found in bed with a loaded machine gun. He claimed that he had taken it off another man to prevent him using it, and was going to take it to the police in the morning.

Held: he should have been allowed to raise the defence of duress of circumstances, but that the jury would need to consider his behaviour with the gun to decide if the duress had ceased. A re-trial was therefore ordered.

"If the only threat which will found the defence of duress of one of death or serious injury, it seems to follow that no lesser threat can ever found a defence of necessity...A possible answer to this argument is that the duress defences apply whether or not the evil caused by the "criminal" act is outweighed by the evil involved in the threat - D is excused because his will is overborne; but that necessity applies only, but whenever, the evil caused is outweighed by the evil avoided..."

R v Rodger & Rose [1998]

D’s claimed that they had been forced to escape from prison because otherwise they would have been driven to commit suicide as a result of the extreme depression they were suffering.

Held: For the defence to apply, the "circumstances" had to be external to the actual offender.

It is difficult to find a logical distinction. It may be policy decisions based on the facts of each case.
We think the courts are reacting as they have done in "necessity" cases, on a case-by-case basis; the distinctions between necessity and duress of circumstances are becoming more blurred.

Necessity and duress compared to self-defence

Unlike necessity and duress, self-defence or s 3(1), can constitute a complete defence to any crime, including murder and treason.

The Law Commission in their draft Criminal Law Bill

Propose to subsume necessity in a new and enlarged defence of duress of circumstances. This would cover all cases where a person acts because he knows or believes that it is immediately necessary to avoid death or serious injury to himself or another. The wording of their proposed clause is almost the same as that proposed for duress by threats.


Perka v The Queen (1984)

The Supreme Court of Canada acknowledged the existence of the defence in general terms.


American Model Penal Code.

"Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offence charged."
Model Penal Code Art.3 s.3.02

The Law Commission has defined duress of circumstances as a specific defence in the same terms as duress, except that the need for a threat is not specified

"A person does an act under duress of circumstances if: (a) he does it because he knows or believes that it is immediately necessary to avoid death or serious injury to himself or another" (s.27 (2))

However, necessity has been left out.

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