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Criminal Duress Poster CL4202...

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Duress

Duress •

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Duress applies as a defence where a person commits a crime as a response to a threat of death or serious injury either to themselves or another. The defence of duress is a general defence but there are certain limitations on its use. It cannot be raised in defence to murder, attempted murder or by any person who has participated in killing. In cases where the defence of duress is pleaded successfully it has the effect of absolving the defendant of liability. This is because whilst he clearly possesses the requisite mens rea for the offence, in carrying out the actus reus they are acting under compulsion and not through choice, thus it is not a voluntary act. It can be seen in this respect that duress differs from those defences such as intoxication, automatism and mistake which act to negate the mens rea. It also differs from justificatory defences such as self-defence as it does not justify the crime but instead offers an excuse for the behaviour of the defendant. In criminal law the defence of duress takes two different forms: o Duress by threats o Duress by circumstance

What Needs To Be Proved? • • •

It is convenient to talk about the trigger and the response. The trigger describes the situation that has to come about in order for you to be entitled to use the defence. The response describes what you can l awfully do once that situation has arisen.

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A threat or threats by another 1. directed towards the defendant or person(s) for whom he is responsible 2. Which causes them to be in fear or life or GBH 3. Threat must come from an extraneous source 4. Must be an imminent danger

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The Trigger – Threat Directed Towards Defendant •

‘the threat must be directed towards the defendant, or a person or persons for whom he is responsible, or ….. persons for whom the situation makes him responsible…..this extends by way of example, to the situation where the threat is made to set off a bomb unless the defendant performs the unlawful act. The defendant may not have had any previous connection with those who would be injured by the bomb but the threat itself creates the defendant’s responsibility for those who will be at risk if he does not give way to the threat.’ – Shaylor (2001)

Duress of circumstances arises where it is not a person that provides a threat to the defendant but the nature of the situation. It might be that another person creates the threatening situation but unlike duress by threat there is no requirement that a person specifies to the defendant that a crime must be committed, so long as there is a sufficient link between the situation and the crime. More recent. Developed by analogy to duress by threats. Allied to the defence of necessity.

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Trigger – Imminent Danger In R v Hasan [2005], Lord Bingham stressed that the defence would not be available, for example, where there was a delay of a day between the defendant being threatened with being shot and his commission of the crime.

R v Rodger and Rose [1998]: defendant serving a life sentence informed tariff has been increased. Broke out of prison claiming duress as a defence to prison-breaking since the there was a threat to his life in that he had become suicidal. Held that there was no defence since the threat had come from himself not an extraneous source. R v Brown [2003]: defendant cultivated cannabis for personal use to alleviate pain for MS. Claimed defence of duress since otherwise threat of serious bodily harm. Held no defence since the threat had come from himself not an extraneous source.

Is The Defence Available To Those Who Associate With Criminals?

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R v Hassan [2005]. Damage to property insufficient. Does not extend to threats of false imprisonment: Dao v R [2012] EWCA Crim 1717.

Trigger – Extraneous Source

The Trigger

Duress By Circumstance •

Trigger – Causing Fear Of Death Or GBH

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The plea is not available to those who voluntarily associate with criminals. ‘when as a result of the accused’s voluntary association with others engaged in criminal activity, he foresaw or ought reasonably have foreseen the risk of being subjected to any compulsion by threats of violence’ (Hasan [2005]) Note that the test is objective: the defence is denied where it is proved that the defendant ought to have been aware of the risk of being subjected to threats. The Crown does not have to prove that the defendant himself foresaw this. If the defendant voluntary joins a criminal gang, he will be denied the defence. In Fitzpatrick [1977], duress was no defence to charge of robbery committed as a result of threats by the IRA since he had voluntarily joined the organisation.

Elements Of The Defence •

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The defence applies similarly in relation to both duress by threat and duress of circumstances and both are governed by the same criteria. Accordingly, most of the cases are authority for both forms of the defence. The defence was set out in R v Graham [1982] 1 All ER 801. It set out two elements to the defence: a subjective element and an objective element. These are: o Was the defendant or might the defendant have been induced to act as he did because he feared that if he did not, death or serious injury would result to him, an immediate relative or someone he is responsible for? o Would a sober person of reasonable firmness, sharing the defendant’s characteristics have acted in the situation in the way as he did? If these elements can be shown then the following must also be shown for the defence to succeed: o There must be immediacy, and; o The defendant must not have missed an opportunity to escape the threat without committing a crime. Finally, even where this has been established, following the ruling in R v Hasan [2005] 2 AC 467 the defence will be excluded where a person who voluntarily becomes involved in or remains involved with people who are engaging in criminal activity and ought to reasonably have foreseen the possibility of becoming the subject of compulsion by them or associates known to them. The House of Lords in handing down the ruling in Hasan were concerned that the defence was being too broadly applied to the benefit of defendant’s who were involved in drugs and organised crime. The House sought to restrict the defence and stop the increasing use of the defence in these situations.

The Defence Of Duress Explained 1. Specified crime 2. Immediacy 3. Facing a threat of death or serious injury 4. To the defendant or a person for whom he has responsibility 5. The threat must overbear the ordinary powers of human resistance.

R v Hasan (2005) 2 AC 467 •

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The defendant, Hasan, worked for an escort agency ran by a lady named Taeger. The agency offered prostitution services to its clients and Hasan would drive the women to the male customers and acted as a minder. During Hasan’s employment, Taeger became involved with a man named Sullivan who was a well-known drug dealer with a reputation for violence. Sullivan took over most of Hasan’s work escorting the ladies and a bad feeling existed between the two of them as a result of this. Hasan knew that Sullivan was dangerous and violent as Sullivan had previously bragged to him about 3 murders he had committed recently. One evening Sullivan and an accomplice ambushed Hasan outside his house. Sullivan ordered Hasan to carry out a burglary on one of the escort agency’s clients. Sullivan stated that his accomplice would go with Hasan to make certain that the burglary was carried out and if it transpired that Hasan did not carry out the burglary, Sullivan would bring harm to Hasan and his family. Hasan followed the orders but was caught and convicted of the burglary. He sought to argue duress but this was rejected by the jury. He appealed on the basis of misdirection and the case went all the way to the House of Lords. The House of Lords stated that the conviction was correct. Lord Bingham stated at paragraph 499 that “the policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them.” In all cases, the question is for the jury to decide whether the threat that the defendant was exposed to was serious enough so as to outweigh the seriousness of the offence committed. For example, a threat of a slap would not justify the committing of a robbery but threat of causing grievous bodily harm would likely justify the offence of theft.

Duress By Threat - Specified Crime •

In relation to duress by threat, the threat issued must be accompanied by instruction to commit a specified crime. A threat demanding money or circumstance where money is needed which the defendant decides to avoid by committing a crime to gain the money is insufficient.

Duress By Threat – R v Cole (1994) •

The defendant, Cole, borrowed a sum of money from a violent loan shark. This is a lender that charges exceptionally high amounts of interest on the sum borrowed. The amount due got out of hand and the loan shark threatened to inflict serious injury on Cole and his girlfriend if the money was not sharply repaid. Cole resorted to bank robbery to raise the necessary funds. In response to his charge for the offence he attempted to raise the defence of duress. The Court held that there was an insufficient link between the loan and the crime. He was not told to steal the money at any point by the loan shark, and therefore the defence failed.

Duress By Threat - Immediacy •

The requirement for immediacy is broad and does not require immediacy in the strict sense of the word.

R v Abdul Hussain (1999) •

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The defendants were Muslims living in Iraq who had been sentenced to death after giving evidence during torture. They had escaped to Sudan but feared that they were to be deported and sent back to Iraq to face their punishments. They hijacked and aeroplane and took it to London where after negotiations they surrendered to the UK authorities. Initially it was ruled that the defence of duress could not apply as there was no immediacy. On appeal the Court however held that the execution of a threat need not be immediate and in this case there was sufficient immediacy for the defence to be applied. Where there is an opportunity to take evasive action to negate the threat then Hasan suggests that this will negate the immediacy.

Duress By Threat – To The Defendant Or A Person For Whom He Has Responsibility

This element is fairly self-explanatory and sets out that the threat that the defendant faces must be one of death or serious injury. Blackmail or other threats to reveal sensitive information are not therefore sufficient but may be taken into account by the courts where they exist alongside relevant threats of death or serious injury.

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As above, this element is clear in that the threat that arises from the individual or the circumstance must be a threat against either the defendant himself or a person which the defendant has responsibility for. This would include for example family members.

R v Shayler (2001) •

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Duress By Threat – Threat Of Death Or Injury •

Duress By Threat – Must Overbear Ordinary Powers Of Human Resistance

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The defendant worked for Mi5. As an employee of the Intelligence Agency he had signed under the Official Secrets Act not to disclose information and he was bound by this. In spite of this the defendant provided a journalist with confidential documents pertaining to national security issues. The defendant was charged for this but contented that his disclosure had been necessary to protect the general public who faced a threat from the issues contained in the documents. The Court dismissed this reasoning and held that he was not entitled to raise the defence of duress as he had not identified precisely who the potential victims were nor establish any responsibility for them. Lord Woolf set out an example explaining the reasoning comparing two scenarios, one where a spy is captured and told his family will be murdered if he does not disclose information and another where a spy believes that someone somewhere at some time may possibly suffer if he does not disclose information to the public. He stated at paragraph 67 that “the first is a situation where almost certainly a defendant would be able to rely on the defence. The second position is one where a defendant cannot possibly rely on the defence. Mr Shayler falls squarely within the second position on the spectrum.” In contrast to Shayler, in some instances the situation existing can place the defendant in a position where he is responsible for the person in question. Consider the case of R v Conway [1989] QB 290.

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The objective arm of the Graham test set out above acts so as to establish whether the threat faced would cause a reasonable person to act in the same way. The way of establishing that is to ask whether the given threat was so great that it would overbear the powers of ordinary human resistance. This focuses on three points: 1. a reasonable belief 2. a good cause of fear 3. a sober person of reasonable firmness, sharing the characteristics of the defendant might act the same. In applying this test, some but not all of the characteristics of the defendant may be taken into account. A recognised medical condition causing the defendant to have a reduced firmness can be taken into account but a general nervous disposition cannot. In R v Martin [2001] EWCA Crim 2245, the defendant was a schizoid. This denotes that he had a type of personality disorder whereby he had a lack of interest in social relationships and preferred a solitary existence with tendencies towards emotional coldness. This condition meant that the defendant was more likely to interpret words and actions as a threat. The Court held in this situation that any personal characteristics relevant to the defendant’s interpretation of the threat should rightly be considered. R v Bowen [1996] 4 All ER 837 is authority for the fact that age, sex and any physical disability should be taken into account but not IQ. R v Flatt [1996] Crim LR 576 further held that any self-induced characteristics could not be given to the reasonable person.

Is There A Defence Of Necessity? • • •

Duress By Circumstances – Necessity

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Identical to duress by threats except defendant’s conduct not promoted by threats but rather by a situation. Developed more or less by accident. Identical to duress by threats except D’s conduct not promoted by threats but rather by a situation so must be imminent danger causing them to be in fear of life or GBH, which is assessed objectively

Dicta suggesting ‘no’ o Buckoke v GLC (1971) o Southwalk LBS v Williams (1971) – Denning ‘…Necessity would open a door which no man could shut’

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Dicta suggesting ‘yes’ o Gillick (1986) – belief that the action was necessary for the health of the girl o F v West Berkshire (1989) – ‘There exists a defence of necessity at common law….’

R v Willer (1987) •

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Defendant was charged with reckless driving for driving very slowly on a pavement in order to escape from a gang of youth’s intent on doing violence to him. At first instance, the defendant was convicted as the judge declined to leave the defence of necessity to the Jury. However, the Court of Appeal quashed the conviction. They held that there was no need to decide on any defence of necessity that might have existed because the defence of duress arose. But this defence of duress by threats since the youths had not said ‘drive on the pavement or else’. Rather the defence in substance was one of necessity since the defendant drove recklessly in order to escape death or serious bodily harm.

R v Conway (1989) •

The defendant drove recklessly since his passenger erroneously feared a deadly attack. His conviction for reckless driving was quashed since the defence of duress of circumstances had not been left to the Jury.

R v Bell (1992) •

Defendant who drove off in fear of his life but was under the influence of alcohol, was guilty of an offence if it could be proved that he had continued to drive after the terror ceased.

Dudley And Stephens (1884) •

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Three men and a boy were shipwrecked. After 18 days in an open boat (including 7 days without food or water) Dudley and Stephens suggested to the third man that they should kill and eat the boy. He declined but two days later Dudley killed the boy, who by then was very weak, and all three fed on the boy’s body. They were rescued four days later and were indicted for murder. They were convicted but their sentence was commuted to 6 months imprisonment. But the ratio of the case is unclear: Two possible interpretations: 1. The court denied the existence of the defence of necessity – never a defence. Evidence to support this would include dicta on ‘Who is to be the judge of this necessity?’, the ‘Christian duty of selfsacrifice and the political unpopularity of necessity)’. 2. Necessity potentially a defence but not made out on the facts - Evidence to support this the court pointed out that it was no more necessary to kill the boy than one of the grown men, it was only probable they would have died and likely boy would have died first. This suggests that had necessity been more pressing, may have been a defence.

Law Commission •

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Law Commission (1977) ‘Defences of General Application’ LC No 83 - ‘No general defence of necessity’. Law Commission (1993) Legislating the Criminal Code LC No 218 ‘Defence of necessity to be left open to be developed by the courts’. In most editions of Smith and Hogan the authors doubted that such a general defence applied. However, in Smith’s last edition (2002) he recognised necessity as a defence to murder. He said that the defence would apply if 9/11-like hijackers were shot down. The deaths of those on board, he submits, would be necessary in light of the greater impeding danger.

Re A (Conjoined Twins) (2000) •

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The court held that, in the special circumstances of that case, it was lawful to kill the weaker twin to save the life of the stronger. Brooke LJ based his decision upon necessity. Following Stephen’s Digest of Criminal Law, he held that the defence had three requirements. The act must be needed to avoid inevitable and irreparable evil. No more should be done that is reasonably necessary for the purpose to be achieved. The evil inflicted must not be disproportionate to the evil avoided.

Relationship Between Necessity And Duress •

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‘The distinction between duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts’: Shaylor [2011} para [55] ‘On the facts of this case… we can leave open the question as to whether there is a distinction between necessity and duress of circumstances’ R v CS [2012] EWCA Crim 389 para [15] ‘The defence of duress is a species of the defence of necessity. For clear policy reasons its application is closely circ...