Duress

In english criminal law duress is a limited defence to criminal charges.

Duress of threats may be used as a defence to a criminal act particularly if the person or his family is threatened Hurley and Murray 1967. It may be applied if others are also at risk.

The defence of duress can only be used if the defendant is in reasonable fear of his life or serious injury and if 'a sober person of reasonable firmness, sharing the characteristics of the accused' would have acted in the same way.  'Characteristics' would refer to age, sex mental impairment and post traumatic stress disorder (Bowen 1996), but would not include a personality disorder (Hegarty 1994) excessive vulnerability, timidity or pliability (Horne 1994, Bowen 1996) or a low IQ (Bowen 1996).

There must be an imminent threat which can not be dealt with by official agencies at that time.  There may be certain circumstances when the court will look at this on an individual basis Valerama-Vega 1985 and Hudson and Taylor 1971.

The defence of duress is not normally available if the defendant has voluntarily become a member of a gang or other illegal enterprises Fitzpatrick 1977 and Flatt 1996 again there may be circumstances when the defence will still be allowed as in House of Lords - Hasan formerly known as Z2003.

The defence did succeed in the Court of Appeal in the case of Z 2003 (now known as R v Hasan 2005) which can be distinguished on the basis that the prior involvement and contact was unrelated to the eventual crime committed and the Court of Appeal were not satisfied with the adequacy of the direction to the jury. However the crown appealed and the matter came before the House of Lords.

There were two areas which were the subject of a direction. One related to the question of whether the accused could of taken evasive action and the second issue was that the jury were not directed on the question of foresight of the sort of crime with which he was charged. The House were satisfied that on the issue of evasive action there had been no mis-direction and the matter was properly explained to the jury. As to the question of foresight the House took the view that there was no requirement to show that the defendant foresaw the type of crime involved. The appeal by the prosecution was allowed and the conviction was reinstated.

The defence can not currently be used as a defence to murder or attempted murder or some forms of treason.

The relevance of shepherd to the defence of duress

Explain how the defence of duress operates

Bowen, R. v [1996]

R v Hudson Taylor [1971]

 

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