Duress is a defence based on the fact that the defendant has been effectively forced to commit the crime. The defendant has committed the offence because he has been threatened with death or serious injury. Duress can be used as a defence to all crimes, except murder, attempted murder and, possibly, treason. The problem is that many areas within the law of duress are very controversial and some decisions made by the courts contradict one another.
Duress by threats is where a person's will is overborne by threats of death or serious injury, so that he commits an act which he would not do otherwise. So, where another person threatens the defendant with serious violence unless the defendant commits an offence, and the defendant then commits the offence, he is acting under duress. The threat must be of death or serious injury; lesser threats do not provide a defence. For example a threat to disclose a previous conviction is not sufficient for duress. However, provided there are serious threats, then the cumulative effect of the threats can be considered. This was decided in the case of Valderrama-Vega (1985). In this case the defendant was a member of a gang of shoplifter's. He and his family had been threatened with violence when he tried to give up. It was held that while a person who joins a paramilitary organisation or a gang of armed robbers must expect to be threatened if their nerve fails them, the same is not necessarily true of every criminal enterprise. The defendant was found not guilty.
It used to be thought that the threat had to be to the defendant himself. But in an Australian case in 1967 it was accepted that the threats to kill or seriously injure the defendant's common - law wife were sufficient. In recent cases in England it has been accepted that the threats to family or even to friends can be a basis for the defence of duress. In Martin (1989) in a case of duress of circumstances the wife of the defendant threatened to commit suicide unless he drove whilst unqualified.
In deciding if the defence should succeed the jury must consider a two-stage test. This involved both subjective and objective tests. These are: was the defendant compelled to act as he did because he was reasonably believed he had good cause to fear serious injury or death (subjective test) and if so would a sober person of reasonable firmness, sharing the characteristics to the accused, have responded the same way (objective test). These tests were laid down by the Court of Appeal in Graham (1982) and approved by the House of Lords in Howe (1987). In Graham (1982), the defendant killed his wife acting in concert with his homosexual over who lived in the flat with defendant and his wife. The defendant 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 the defendant pull the other end. The defendant claimed his fear of his lover amounted to duress. The Court of Appeal held that this as not sufficient for duress and the defendant was found guilty. In the case of Howe (1987) the defendant acting under duress, took part with others in two separate murders, and on a third occasion the intended victim escaped. The House of Lords departed from the Decision in Lynch using the practice statement and held that duress was not available as a defence to murder whether it be committing the crime yourself or assisting in the act. The defendant was found guilty.
The subjective part of this test is based on whether the defendant did the offence because of the threats he believed has been made. This was subjective, but it was thought that this has to be a reasonable belief in the sense that an ordinary person would have believed it. However in Martin (DP) (2000), the Court of Appeal interpreted this part of the two stage test as being whether the defendant may have reasonably feared for his safety. In the case of Martin (DP) (2000), the defendant suffered from a condition known as Schizoid-affective state which would make him see things as threatening and believe the threats would be carried out. The defendant's conviction was quashed as it was held that the defendant genuinely believed that he or his family was at risk.
The objective part of the test is based on whether the reasonable man would have responded in the same way. However, the jury is allowed to take certain of the defendants characteristics in account, as the reasonable man is regarded as sharing the relevant characteristics of the defendant. In Brown it was accepted that the following could be relevant: age, pregnancy, serious physical disability, gender.
Duress can only be used as a defence if the defendant is placed in a situation were he has no safe avenue of escape. In Gill (1963) the defendant claimed that he and his wife had been threatened unless he stole a lorry. However, there was a period of time during which he was left alone and so could have raised the alarm. As he has a 'safe avenue of escape' he could not rely on the defence of duress.
The threat must be effective at the moment the crime is committed, but this doe not mean that the threats need to be able to be carried out immediately. If the threat is hanging over the defendant at the time he or she commits the offence, then the defence of duress is available. This was further considered in Abdul-Hussain (1999), where the defendant's were Shia Muslims living in Sudan who feared being sent back to Iraq and certain execution. They hijacked a plane equipped with plastic knives and imitation hand grenades, forced it to fly to Britain where they surrendered after 8 hours. The defence of duress of available to them and they were found not guilty.
The defendant can only use the defence of duress if the threats are in order to make him commit a specific offence. This is illustrated in the case of Cole (1994), the defendant robbed several building societies. He claimed moneylenders had threatened to harm him and his girlfriend if he did not repay it money he had borrowed. It was not a threat that death or personal injury would follow if the defendant did not commit the armed robberies.
In conclusion I think that the limitations which the courts have placed on the defence of duress are good as they protect the defence and reserve it for those genuinely forced into doing something due to threat of serious injury or death and the limitation also recognises that the defence is an important one and the courts have made sure that the defence is not one that can be taken advantage of by say terrorists or criminal gangs.
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