Explain how the defence of duress operates

The defence of duress operates in common law. We therefore have to consider a number of cases in order to first define the defence and then identify when it is available and when it is not.

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The defence of duress is a general defence to a criminal charge.


General defences are said to be a complete defence to a criminal offence. If the defence is successful then the defendant will be acquitted and found not guilty of the offence. Should the defence fail, for example the jury may fail to agree on the defendant's version of events, then the defendant will be found guilty of the charge. For this reason it is not a partial defence and could be said to be an 'all or nothing defence'.


Some defences are referred to as 'special defences' meaning that whilst they are by nature a defence to criminal behaviour they do not operate to totally absolve the defendant from responsibility. Special defences can only apply to a specific charge such as murder.


The Homicide Act 1957, created three defences that can only be pleaded in response to a murder charge. The defences are provocation, diminished responsibility and suicide pact. The effect of such a defence, if successful, is to reduce the charge of murder to manslaughter. There can be no acquittal in such circumstances and therefore it follows that there will be a conviction even if the defence is successful. (Note: Section 54 of the Coroners and Justice Act 2009 replaces the the former defence of provocation, found in the Homicide Act 1957,  with the defence of loss of control. The provisions in the 2009 Act apply to defendants charged with murder where the death of the victim was the result of acts or omissions which took place on or after 4 October 2010. Provocation will remain as a defence to killings which took place before 4 October 2010).


Duress can be contrasted with some other defences such as mistake, intoxication, necessity and consent, which are only available for some offences.


Mistake on the other hand is available as a defence for all offences.


Intoxication is not available for all crimes and in particular cannot be pleaded in response to a basic intent crime. A basic intent crime is one where no specific intent is required for the offence to arise. In the case of basic intent crimes a lesser form of mens rea may be sufficient such as recklessness in the case of common assault. A specific intent crime generally requires a high level of mens rea such as the intention to kill or cause serious harm in the case of murder.


Necessity is very problematic and is strictly limited, so much so that there are very few examples of it successfully being pleaded as a defence.


Consent is not available for murder or for serious assaults.

Duress itself is another defence which has limitations imposed by the courts. Duress is not available to use as a defence to murder, attempted murder and possibly treason.

It is a general defence, that is to say the accused will be acquitted if the defence is successful.  If the defence fails then the defendant will be convicted.  It is therefore an all or nothing defence like other general defences.  

Duress is not a partial defence like the special defences of provocation, diminished responsibility and suicide pact to a charge of murder, which have the effect of merely reducing the charge from murder to that of manslaughter.

The nature of the defence of duress by threats is that the defence claims that he was forced to commit the offence because he was compelled to do so as a result of the use of a threat of violence towards him or her or their close family.  The basis of the defence is that the law recognises that it is only fair to the individual to accept that someone’s free will can be overcome by such threats and that if the defence is accepted then the defendant’s conduct is excused and they are able to escape criminal liability.

The leading case of AG v Whelan 1934 acknowledged the existence of the defence and has provided a useful working definition of the defence i.e. where the accused is subjected to ‘threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance.’

The courts have considered who must be threatened. As a result it is fairly established that the force or violence must be directed at the accused.  This will include threats aimed at the individual’s family and others close to him, as implied by the Australian case of Hurley and Murray 1967. This principle was accepted by the Court of Appeal in the case of Wright 2000 which involved threats to the defendant’s non live-in boyfriend.

The courts have also had ample opportunity of examining the meaning of ‘immediate’ and the leading cases of Hudson and Taylor 1971, Abdul-Hussein 1999 and Heath 1999.


In the case of Abdul-Hussein 1999, which involved the hijacking of a plane to escape persecution in Iraq, the Court recognised that knowing exactly when the threat might be carried out would still have an effect on a person's actions and held that the threat must be 'imminent' and operating on the defendant's mind at the time of the offence. In this case that defendants feared the execution of themselves and their family on their return to Iraq.

In the case of Hudson and Taylor 1971, a case that involved allegations of malicious wounding, two girls aged seventeen and nineteen were the main prosecution witnesses.  Unfortunately, following intimidation by associates of the accused, the two girls changed their accounts of events at the last minute in court and their evidence was instrumental in the defendant’s acquittal.  The girls were charged with perjury and pleaded the defence of duress by threats. They alleged that they had been threatened with serious violence if they proceeded with their original evidence.  To make matters worse they had caught sight of those responsible in court, sitting in the public gallery.

The trial judge ruled out the defence on the basis that the threats were not sufficiently present and immediate. Widgery LJ said ‘It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a ‘present’ threat in the sense that it is effective to neutralise the will of the accused at that time’ “The defence will not be available if there is ‘a safe avenue of escape” A conviction followed and the girls appealed.  The Court of Appeal came to their assistance and decided that the prosecution needed to show that the girls could have secured their own protection by taking appropriate measures.  The matter should then have been left to the jury for them to decide, bearing in mind their age and all the circumstances of the case.

We are also helped in our understanding about what amounts to duress by the leading case of Graham 1982. The case of Graham is memorable as it involved a charge that Graham had helped kill his wife because he had been threatened by his homosexual lover, King. Graham claimed that he was frightened of King. He also claimed that this fear followed on from the fact that King had been violent towards him and his wife.


Mrs Graham had left the matrimonial home because of the fear of violence but was lured back to the home and strangled by King with the electrical flex from a coffee percolator. Graham also claimed that he was taking Valium ( a prescribed sedative) and that this had the effect of increasing his fear and this made it easier for him to agree to help King in the way he had. He was convicted of murder, following the rejection of the defences of intoxication and duress.


The case has helped in our understanding of the meaning of that part of the Whelan definition which reads 'so great as to overbear the ordinary powers of human resistance'. The court of Appeal took the view that the trial judge had probably been rather generous to Graham as part of the summing up process and dismissed the appeal.


The Court of Appeal put forward a two part test to be used in the future as a means of achieving some consistency. The test contains a subjective element or test as well as an objective test and provides as follows:


  • was the defendant compelled to act as he did because he feared serious injury or death? (this is the subjective part); and

  • if the answer to the first part is yes, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way? (the objective part).


What level of violence will suffice? The threat must be of death or serious injury; lesser threats do not provide a defence (Singh (1971), Valderrama-Vega (1985). The threat must be a really serious one and any thing less will not be sufficient.

In 1985, Valderrama-Vega the defendant gave three reasons for his involvement in cocaine smuggling. He claimed that he and his family were threatened with death or injury if he did not participate, he also claimed that he was in severe financial difficulties and thirdly he claimed that threats were made to the effect that his homosexual tendencies would be revealed.

The trial judge ruled that the jury should ignore the fears concerning financial difficulties and his homosexuality and only allow the defence if they were satisfied that the defendant had committed the offence as a result of the threats of violence. The defendant was convicted and appealed.


On appeal, the Court of Appeal ruled to the effect that the threats of violence did not have to be the only reason and that the jury were entitled to consider the cumulative effect of other factors. The Court considered that the use of the word 'solely' amounted to a misdirection and should be avoided in future - Ortiz (1986).


What allowances can be made? What type of characteristics should be taken into account? This was considered in the case of Bowen (1996). In this case the defendant had committed extensive crimes of obtaining electrical goods by deception. He claimed that he had committed these offences because of the threat to use petrol bombs against him and his family. It was part of his defence that he only had an IQ of 68 and was particularly vulnerable to threats. Bowen was convicted and then appealed.


The Court of Appeal did not allow his appeal on the basis that his low IQ fell short of mental impairment and determined that such factors as vulnerability, pliability and timidity were not shared by a person of reasonable firmness. Although it did not help Bowen himself, the defence of duress was in effect widened by the Appeal Court's decision to indicate the sorts of factors that could be taken into account. These include:


  • age – it is arguable that the very young as well as the elderly and frail are especially vulnerable to threats;

  • pregnancy - because of the additional responsibility for the unborn child;

  • recognised mental illness – including post traumatic stress disorder or any recognised mental impairment but not a low IQ;

  • recognised physical impairment – as this may well raise issues about self defence and protection;

  • gender – as women may be particularly vulnerable to certain types of threat.


Finally, mention should be made that a form of self- induced duress exists where the defendant knowingly joins a criminal organisation and is then forced to commit crimes under threat. If the defendant knew of the gang's propensity to use violence when he joined then he will not be allowed to put the defence of duress forward, Sharp (1987). This case can be distinguished from the case of Shepherd (1987) in which the 'modus operandi' of the gang did not involve violence, but deception, and the defence of duress was allowed.

(Word count 1974)

R v Hudson Taylor [1971]

Abdul-Hussain, R. v [1998]

Heath, R v [1999]

Graham, R. v [1981]

Singh v Singh V [1971]

Bowen, R. v [1996]

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