Duress

What is duress?

Duress occurs when a person is forced or compelled to commit a criminal act because of a threat of imminent harm or serious injury from another person or situation. Essentially, the accused did not act of their own free will and was under a threat of violence or serious harm if the act was not carried out.

Is duress a defence to a criminal allegation?

Duress is a common law defence which is available to all crimes except murder, attempted murder and treason involving the death of the sovereign. The defence is however available for a charge to conspiracy to commit murder.

There are two main types of defence for duress. Duress of threat and Duress of Circumstance or Necessity.

Duress by threat

Duress by threat would be applied in the case where the defendant was commanded to carry out a criminal act whilst simultaneously being threatened. The threat must be of immediate death or personal injury, to either themselves or a family member, to such a degree that it overrides normal human resistance.

Defence to duress by threat

The defence of duress by threat was set out in A-G v Whelan, as arising in circumstances where the defendant was ordered to commit an offence whilst subject to threats of immediate death or serious personal violence and the threat was so great that it was overbearing.

Further elements to be considered for duress to be established are as follows –

The threat must be serious

The threat of harm must be a serious one, this would usually involve the threat of violence or serious injury, minor threats to property or to cause minor harm will not be sufficient. Threats to a person’s own life and that of loved ones such as family or friends or a third party may be sufficient.

The threat must be immediate

A person under threat must genuinely believe that the threat will happen immediately if they do not carry out the criminal act and there must be no time to take other preventative measures.

There must be no reasonable escape

The defendant must have no reasonable opportunity to avoid the threat without committing the criminal act, so if there was a chance to contact the police for example or escape to a safe place the defence may likely fail.

There must be proportionality

The crime committed must be proportional to that of the threat.

There must be no voluntary exposure to the risk

The accused must not have placed themselves in a situation where they would be subject to duress in the first place. For example, being associated with a gang and placing oneself around individuals that they know carry out violent threats.

Examples of duress would include:

• A person held at knifepoint and being forced to drive.
• A family member of a person being threatened with an immediate punch if the person doesn’t steal something from a store.

Objectively, the belief must be reasonable from the standpoint of a person of reasonable firmness, sharing the defendant’s characteristics. Subjectively, the defendant must have had a genuine belief in the threat.

Burden of proof

Once the defence of duress is raised, it is for the prosecution to prove beyond reasonable doubt that the defendant was not under duress when committing the crime.

Necessity (Duress of Circumstances)

The defence of necessity interchangeably known as duress of circumstances justifies a defendant’s conduct if that conduct was carried out and the conduct was necessary to prevent greater harm. It involves an external situation or circumstance that compels a person to act in a way that may normally be considered illegal.

It is different from the traditional defence of duress of threat in that it involves a direct threat from another person compelling a person to commit a criminal act rather than a situation or circumstance. There is also a subject and objective element to the defence of necessity and there must also be a sufficient link between the circumstance and the crime committed.

Defence

The defence of necessity was set out in R v Graham, which establishes two elements –

1. 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? (subjective element);
2. Would a sober person of reasonable firmness, sharing the defendant’s characteristics have acted in the situation in the way he did? (objective element).

Further elements to be considered are as follows –

• The defence will only apply as long as the threat is immediate and present.
• Once the threat is removed, there can be no further justification for further continuing the act.
• It must be proportionate. 

Examples of duress of circumstances (necessity) include:

• Trespassing onto someone’s land to avoid a dangerous animal, once the animal has gone, that person should immediately remove themselves from the land and not remain on the land otherwise the defence may fail.
• Contravening red traffic to avoid a collision.
• Damaging property to save life, the risk of the loss of life is far greater than damage to property.

Burden of proof

An accused would be required to raise the defence of necessity. If this is established then it would be for the prosecution to prove beyond reasonable doubt that the defendant’s actions were not justified by necessity.

Conclusion

The defence of duress hinges on the nature of the threat, the immediacy of the threat and the proportionality of the response to that threat. Whether the defence of duress is successful will very much be a matter of considering each case individually.

The defence of duress of circumstances takes into account that sometimes it may be necessary for an individual to break the law to avoid greater harm. Again, this would be considered on a case-by-case basis and once raised it would be for the prosecution to disprove.

How we Olliers help?

Should you find yourself in a position whereby you have acted under the threat of another person or indeed a circumstance and you have been charged with a criminal offence, Olliers may be able to assist in exploring any potential defences available, including that of duress.

Speak to a specialist criminal defence lawyer

If you require specialist criminal defence lawyers, please contact us by telephone at 0161 8341515 (Manchester) or 020 38836790 (London), by emailing info@olliers.com or complete the form below to send us a message.