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Cases - defences - duress

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Abdul-Hussain (Mustafa Shakir), R v [1999] CA

Ali, R v [1995] CA

Attorney-General v Whelan [1934] Murnaghan J (Irish CCA)

Baker & Ward, R v (1999)

Bowen. R v [1996] CA

Cole, R v [1994] CA

Fitzpatrick, R v [1977] CA

Gotts, R v (1992) HL

Graham, R v [1982] CA

Hasan, R v [2005] HL

Heath, R v (1999) CA

Hegarty, R v [1994] CA

Howe, R v [1987] HL

Hudson and Taylor, R v [1971] CA

K, R v (1983) CA

Lynch v DPP for Northern Ireland [1975] HL

Safi, R v 2003 (CA)

Sharp, R v [1987] CA

Shayler, R v (2001) CA

Shepherd, R v (1987) CA

Singh, R v [1973] CA

Valderrama-Vega, R v [1985] CA

 

Abdul-Hussain (Mustafa Shakir), R v [1999] CA

 

(Times, 26 January, 1999)

 

 

^[Duress – escape cases]
D'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
.

Held
: The defence of duress by threat or circumstances was available to all offences other than murder, attempted murder or treason.

 

The imminent peril of death or serious injury to the defendant or his dependants had to operate on the mind of the defendant at the time he committed the act so as to overbear his will as in Martin (1989).

 
Per curiam: For the fourth time in five years the Court of Appeal emphasised the urgent need for legislation to define the defence of duress with precision. The law had evolved on a case by case basis and the scope of the defence was uncertain.

Not guilty

Ali, R v [1995] CA

 

 

Red triangle indicating important information

[Duress not available to members of violent gangs]
D robbed a building society to repay X.  D a heroin addict and seller fell into debt to X whom he knew to be very violent. X threatened D that he would be shot if he did not repay the debt. X gave D a gun and told him to get it from a bank or building society.


Held
: The defence was not available where the defendant knew of a violent disposition in the person involved with him in the criminal activity, which he voluntarily joined.

Guilty

Attorney-General v Whelan [1934] Murnaghan J (Irish CCA)

Duress is a defence because-

"… threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal."

Baker & Ward, R v (1999) CA

 

(Times, April 28, 1999)
 

[Duress not available to gang members]
DD were charged with robbery and claimed duress.


Held
: There are two established limitations to the defence of duress:
 

A man must not voluntarily put himself in a position where he is likely to be subject to compulsion (e.g. by joining a violent gang or by undertaking criminal activities such as drug dealing), and

If a person can avoid the effects of duress by escaping, without damage to himself or a member of his immediate family, he must do so.

 

In each case, the defendant's conduct is to be compared with that of a reasonable person.

Convictions quashed, new trial ordered

Parts of this case was disapproved in R v Hasan [2005] HL

Bowen. R v [1996] CA

 

 

Red triangle indicating important information

[Duress – level of timidity of D – characteristics that can be ascribed to D]
D obtained services – credit - by deception.

He had been threatened that his home would be petrol-bombed if he did not provide various electrical goods.


Held
: it was not necessary for the jury to take into account D's low intelligence (short of mental impairment) when considering the effect of the threats on a reasonable person.

Stuart-Smith LJ the principles are:

  1. D's vulnerability or timidity are not to be ascribed to the reasonable person for the purposes of the objective test.

  2. D may be in a category of persons that the jury might think were less able than others to resist threats: for example, young people, possibly women, pregnant women afraid for their unborn child, persons with physical disabilities inhibiting their self-protection, or persons with a recognised psychiatric disorder supported by medical evidence.

  3. Characteristics relevant in provocation because they related to the nature of the provocation (for example, D's homosexuality) would not necessarily be relevant in duress, and characteristics due to self-abuse (such as drunkenness) can never be relevant.

Guilty

Cole, R v [1994] CA

[Duress not available to D who puts himself in his position]
D 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.


Held
: This was a case of lack of causal nexus between the threat and the commission of the offence.  It raised the question of imminence.

 

The threat was that unpleasant consequences would follow if money was not repaid by a borrower to a lender.

 

It was not a threat that death or personal injury would follow if the defendant did not commit the armed robberies The moneylenders had not stipulated that the accused must commit robbery and there was no threat of immediate peril.

Guilty
.

Fitzpatrick, R v [1977] CA

[Duress not available to gang members]
D was a member of the IRA who shot and killed a man during a robbery. He had taken part unwillingly.  When he had tried to resign from the IRA serious threats had been made against himself and his parents.


Held
: Lord Lowry:
A person who joins an illegal organisation with criminal objectives and coercive methods cannot rely on the duress to which he has voluntarily exposed himself.

Guilty

Gotts, R v (1992) HL

 

 

Red triangle indicating important information

[Duress not available in murder or attempted murder]
D aged 17 caused serious injuries when he stabbed his mother with intent to kill her.  He alleged that his father told him to do so and threatened to kill him if he did not carry out his wishes.  

 

Held: Following the decision in R v Howe, as duress is no defence to murder it would be illogical to apply this defence to attempted murder.

Guilty

Graham, R v [1982] CA

 

 

Red triangle indicating important information

[Duress the model direction]
D killed his wife acting in concert with his homosexual over who lived in the flat with D and his wife. D 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 D pull the other end.

D claimed his fear of his lover amounted to duress.


Held
: The model direction to be given to a jury where the defence of duress was raised; subsequently approved by the House of Lords in R v Howe [1987] The jury should consider:

  1. Whether or not the defendant was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger. (Subjective test)

  2. Would a sober person of reasonable firmness sharing the defendant's characteristics have responded in the same way to the threats? (Objective test)

  3. The jury should be directed to disregard any evidence of the defendant's intoxicated state when assessing whether he acted under duress, although he may be permitted to raise intoxication as a separate defence in its own right. 

Guilty

Hasan, R v [2005] HL

 

 

Red triangle indicating important information

 

Whole case here

^[Duress not available to gang members - objective test]

D was involved with prostitutes and others one of whom, S was a drug dealer whom D thought to have committed three murders.

D took a prostitute to the house but the occupant refused her, but on that visit D became aware of a safe in the house.

D was convicted of aggravated burglary when he returned to the house armed with a knife and attempted to steal the contents of the safe.

D claimed that he had acted under duress exerted by S and a black man, a "lunatic yardie" who accompanied D so he had no chance to escape or opportunity to go to the police. The black man said he had a gun.

D was sentenced to 9 years' imprisonment.
 

Held: Since the 14th century there has been available a defence for those who commit crimes because they are forced or compelled to do so against their will by the threats of another, that is duress.

All the legal ingredients necessary to prove the offence are present.  The preferred view is that it does not justify D's conduct it excuses him.

The defendant may not rely on duress to which he has voluntarily laid himself open.

In holding that there must be foresight of coercion to commit crimes of the kind with which the defendant is charged, R v Baker and Ward mis-stated the law
 

D loses the benefit of a defence based on duress if he ought reasonably to have foreseen the risk of coercion
 

A person voluntarily associating with known criminals ought reasonably to have foreseen the risk of future coercion
 

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.

 

Guilty

Heath, R v (1999) CA

[Duress not available to gang members]
D was charged with possessing cannabis with intent to supply. He argued duress that he was a heroin user and had become indebted to his own supplier, who had threatened serious injury if he did not assist.


Held
: D had voluntarily placed himself in a situation where it was likely that he would be subjected to threats and pressured into committing a criminal offence thereby precluding the defence of duress for subsequent criminal conduct.

 

Guilty

Hegarty, R v [1994] CA

 

Red triangle indicating important information

[Duress – person of reasonable fortitude]
D committed a robbery he claimed to have acted under duress. He sought to bring psychiatric evidence to show that he had a grossly elevated neurotic state, and was emotionally unstable and therefore more likely to yield to threats than most people.


Held
: D was to be compared with an ordinary person of the same age, sex and physical health as himself, but otherwise "normal". His mental instability was not to be ascribed to the ordinary person of reasonable firmness, and the judge had been right to exclude evidence of it.

Guilty

Howe, R v [1987] HL

 

 

Red triangle indicating important information

[Duress not available in murder or attempt]
D acting under duress, took part with others in two separate murders, and on a third occasion the intended victim escaped.


Held
: Using the 1966 Practice Statement to depart from the decision in Lynch.

Duress is not available as a defence to murder either to a principal or accessory.  Morals, law and policy should deny a man the right to take an innocent life even at the price of his own.

Lord Hailsham;

”…the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility…”

Guilty - Lynch overruled

Hudson and Taylor, R v [1971] CA

[Duress - the threat must be immediate – or at least the fear must be]
Two teenage girls committed perjury during the trial of X. They claimed that X's gang had threatened them with harm if they told the truth and that one of them was sitting in the public gallery during the trial.


Held
: Lord Widgery CJ;

“…the threats … were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night. [the defence] should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence.”

Although DD were protected during the trial the danger would have persisted afterwards.

 

Not guilty

K, R v (1983) CA

 

[Duress – includes threats to another]
D a prisoner gave perjured evidence on oath in support of another prisoner X.

 

Held: The jury should have been told to take into account not only the threats made by X against D, but also the threats made against D's mother, whose address X had obtained and whose associates could have carried them out.

 

Not guilty

Lynch v DPP for Northern Ireland [1975] HL

 

 

Red triangle indicating important information

 

[Duress not available for attempted murder]
D was an accessory to murder in that he drove a car to a place under threats from an IRA gunman M.  D waited while M and his associates killed a policeman, and then drove them away.

 

Held: A 3-2 majority in the House of Lords allowed his defence of duress. [The decision to allow the defence of duress to an accessory to murder has since been overruled in Howe.]
Lord Simon (dissenting)

The threat must be a threat of death or serious personal injury;

Threats to damage property, or threats of any other kind, are not sufficient.

 

Not guilty but would be now

Safi, R v 2003 (CA)

 

 

[Duress - D need only show he reasonably believed there was a threat]
DD hijacked an aeroplane, imprisoned crew and passengers, possessed a firearm with intent, and possessed explosives. They were escaping from a brutal regime in Afghanistan.

 

Held: Longmore LJ
The first element (the subjective element) requires that DD reasonably believed a threat existed.  
R v Graham [1982] continued to be the law.
There was no need for there to be a threat it is sufficient that DD reasonably believed there was a threat. This is similar to the requirements of provocation and self-defence, where a defendant was entitled to rely on facts as he believed them to be.

So, if a defendant committed a crime because a gun was pointed at him, the defence would succeed if the gun was not loaded and therefore there was no threat in fact.

The courts had repeatedly emphasised the urgent need for legislation to define duress, and it would be possible, for example, to make hijacking an absolute offence; but Parliament appeared content to leave the development of the applicable law to judicial decision.

 

Not guilty

Comment: In 2006 the hijackers had not been extradited despite government assurances that they would not be allowed to remain in the UK, news report here.

Sharp, R v [1987] CA

[Duress not available to gang members]
D joined a gang who carried out a series of armed robberies at sub-post offices. In the last of these robberies the sub postmaster was shot and killed by X.


Held
: Lord Lane CJ;

“…the defence of duress was not available to a person who voluntarily and with knowledge of its nature joined a criminal organisation or gang, which he knew might bring pressure on him to commit an offence, and was an active member when he was put under such pressure.”

Guilty of manslaughter

Shayler, R v (2001) CA

[Duress available for actual not probably threat]
D a former MI5 officer disclosed information and sought to rely on the defence of necessity (or duress of circumstances) and claimed his disclosures had been necessary to ensure that certain malpractices were to be ended.


Held
: Lord Woolf CJ;

The defence of necessity is available only where the defendant's act was a reasonable and proportionate response to a threat of some greater evil directed towards the defendant or towards another person or persons for whom the defendant was in some way responsible. It is not available where the defendant claimed merely that someone, somewhere might some day have suffered if he had not acted as he did.

 

Guilty

Shepherd, R v (1987) CA

 

 

 

Red triangle indicating important information

[Duress possibly available to gang members where the gang is non-violent]
D was a member of a gang of shoplifters. He and his family had been threatened with violence when he tried to give up.

 

Held: 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 jury should at least have been invited to consider whether D could be said to have taken the risk of violence simply by joining a gang whose activities were not overtly violent; they might well have convicted still, but should at least have been given the chance to decide.

 

Not guilty

Singh, R v [1973] CA

To expose D's adultery would not be sufficient grounds for duress to succeed.

 

Valderrama-Vega, R v [1985] CA

 

[Duress – all the threats should be taken into account]
D imported drugs; Colombian drug dealers had threatened to kill or injure D and his family if he did not comply. He was also under financial pressure and had been threatened with disclosure of his homosexuality.

Held
: The threat to expose D to criminal charges was not itself a defence (though it could be considered in mitigation of sentence), but that so long as the threats of physical violence were sine qua non (without which it could not b) to D's decision, the other factors too could be taken into account.

 

Not guilty

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