Defences Paper 2

DURESS

In criminal law, duress is a defense to a crime if the defendant was pressured or compelled to commit the
crime by another. If there was a threat of serious imminent harm to the defendant or others and no
reasonable escape available, then duress or compulsion can be claimed if the crime is of a lesser magnitude
than the harm threatened. The common law recognized duress as a defense for crimes but not murder.

Duress by threat- Duress by threat was defined in A-G v Whelan [1993] as being available when the accused
was told to commit an offence and was subject to: “Threats of immediate death or serious personal violence
so great as to overbear the ordinary powers of human resistance.”

AG V Whelan- The appellant had been convicted of handling stolen goods. The jury had made a finding of fact
that he had acted under threat of death or immediate personal violence. The trial judge held that this finding
lead in law to a conviction with the issue of duress being a matter for sentencing. The appellant appealed
contending that the finding of the jury should have resulted in an acquittal. In this case, the appeal was allowed
and the conviction quashed. Duress is a complete defence and not simply a matter of mitigation in sentence.

It is for the jury to decide whether the threat was sufficiently serious to warrant the defence of duress which
will be balanced against the seriousness of the offence. The elements of the defence were more recently
stated by Lord Bingham in the House of Lords decision of R v Hasan [2005]

Elements of the defence of duress by threat:

 Specified crime
 Immediate threat
 Threat of death or serious injury
 Threat of violence must be to the defendant or a person for whom he has responsibility
 Threat must be so great as to overbear the ordinary powers of human resistance.

1. Specified crime- The threat must be accompanied by an order to commit a specified crime. It is not
sufficient that the D has felt the need to commit a crime to meet a demand for money.

R v Cole- The appellant borrowed some money from a loan shark. The loan shark threatened him and his
girlfriend with serious violence unless he repaid the money. He robbed several building societies in order to
repay the money. He raised the defence of duress. Here, the defence was unsuccessful and his conviction was
upheld. There was not a sufficient nexus between the threat and the crime. The loan shark did not tell him to
commit a crime to repay the money.

2. Threat of immediate death or serious injury- The immediacy requirement is not strictly applied:

R v Hudson & Taylor- The two appellants were witnesses of a fight. They were called to give evidence against
one of those involved in the fight. They had been threatened with violence if they gave evidence against the
defendant. The threat had been repeated on several occasions leading up to the trial and on the day of the trial
the person making the threats was in the public gallery in the court room and staring menacingly at the
appellants. The appellants lied in court so as not to implicate the defendant and they were later charged with
perjury. The trial judge held that the defence of duress was not open to the jury as the threat was not of
immediate violence as the threat was made in a court room and thus could not be carried out immediately. The

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jury convicted and the young women appealed. Here, the appeal was allowed and the convictions were
quashed.

3. Threat of death or serious injury- Threats to reveal sensitive information alone are insufficient to raise the
defence, but may be taken into account if accompanied by threats of death or serious personal violence.

4. Persons for whom the defendant has responsibility- The threat of violence must be to the defendant or a
person for whom he has responsibility or persons for whom the situation makes him responsible.

R v Conway- The appellant was driving with a passenger, Mr Tonna, in his car. Tonna had been in a vehicle a
few weeks earlier, when another man was shot and severely injured and Tonna was chased and narrowly
escaped. Tonna had been the intended victim of the shooting. The appellant noticed that a car was following
him and fearing that it was the person responsible for the shooting, drove off at great speed and recklessly. In
fact the car was driven by two plain clothed policemen. The appellant was convicted of reckless driving and
appealed. In this case, the Conviction was quashed. The defence of duress should have been put to the jury.

Whilst threatened suicide of another may be sufficient, a person cannot rely on their own suicidal
tendency to constitute the threat of death. (R v Rodger & Rose)

5. The threat must be so great as to overbear the ordinary powers of human resistance- The test established
in R v Graham applies to determine whether the threat was so great as to overbear the ordinary powers of
human resistance. The elements of the Graham test: All three elements are objective in nature.

1. The defendant must have a reasonable belief in the circumstances;

2. This belief must have lead the defendant to have a good cause to fear death or serious injury would result if
he did not comply; and
3. A sober person of reasonable firmness, sharing the characteristics of the defendant, might have acted as
the defendant did.

R V Graham: Paul Graham had been drinking and taking drugs when he and his homosexual partner killed
Graham’s wife. Graham claimed he was under duress as his co-defendant was a violent man. He was charged
with first degree murder. He appealed against the conviction on the basis that the trial judge applied a
subjective test to the defence of duress. In this case, his conviction was upheld. The fact that a defendant's will
to resist has been eroded by the voluntary consumption of drink or drugs or both is not to be taken into
account. The Court of Appeal, in confirming the conviction, laid down the model direction to be given to a jury
where the defence of duress was raised.

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)

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.

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Intoxication
Intoxication is not a defence to a crime as such, but where a person is intoxicated through drink or drugs and
commits a crime, the level of intoxication may be such as to prevent the defendant forming the
necessary mens rea of the crime. Public policy plays a strong factor in ascertaining whether the
defendant's intoxication may be used by a defendant to negate the mens rea of a crime. It is obviously not in
the public interest for criminals to escape liability simply by asserting they were so drunk they did not know
what they were doing. This is often seen as an aggravating factor rather than a mitigating factor, particularly
where the defendant put himself in that position.

The law has formulated various rules of uncertain ambit in seeking to strike the balance between on the one
hand, imposing criminal liability on a party who did not have the mental element of the crime and on the
other, protecting the public from those who deliberately put themselves in a position where they are unable to
control their actions. For this reason the law draws a distinction between voluntary
intoxication and involuntary intoxication. The law is generally more accommodating to those who have not
voluntarily put themselves into an intoxicated state.

Involuntary intoxication-
The most obvious example of involuntary intoxication is where a person has had their food or drink spiked
without their knowledge. However, it may also cover where a particular drug has an unexpected result to that
anticipated: R v Hardie. However, if the effect is anticipated but the defendant merely underestimates the
strength, then the intoxication remains voluntary: R v Allen

R v Hardie (1985): D took some valium for his anxiety and depression after falling out with his partner and
threatening to leave her. The valium was not his prescription but the normal effect on a person would be to
calm them down. However, D suffered from an unusual reaction to the drug as it made him more angry
resulting in him setting fire to a wardrobe. D argued that the unexpected reaction to this drug made his actions
involuntary.

R V Allen- The appellant consumed some homemade wine. This had a much greater effect on him than
anticipated. He committed sexual assaults and claimed he was so drunk he did not know what he was doing.
He argued that he had not voluntarily placed himself in that condition as the wine was much stronger than he
realised. It was held that the intoxication was still voluntary even though he had not realised the strength of it.
The crime of sexual assault is one of basic intent and therefore the appellant was unable to rely on his
intoxicated state to negative the mens rea.

In the case of R v Kingston, the House of Lords held that the defence would only work where the defendant
could be shown to lack the mens rea of the offence due to his intoxicated state could he escape criminal
sanction. Thus where drink or drug removes the inhibitions of the defendant so that they may do things which
they would not do when they are sober, they nevertheless often have the mens rea of the crime. The law will
not excuse this behaviour even where the defendant had been drugged by the fraud of another.

Voluntary intoxication-
Where the defendant has voluntarily put themselves in the position of being intoxicated to the extent that
they are not capable of forming the mental element of the crime the law is less forgiving. The law draws a
distinction between crimes of basic intent and crimes of specific intent. This distinction was drawn in DPP v
Beard and affirmed in DPP v Majewski.

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DPP v Beard (1920): Whilst D was voluntarily drunk he raped a 13 yr old and suffocated him to death by
covering his mouth up during the rape. D argued he lacked the MR of murder due to the intoxication. It was
held that if D is so drunk that incapable of forming the MR then they cannot be convicted of the offence.

DPP v Majewski- D was voluntarily intoxicated in a pub and was refused alcohol. D got very aggressive and the
police were called. The landlord tried to get D to leave but D attacked him and spat in his face. The HL held:

1. Self-induced intoxication can only be raised as a defence to crimes of specific intent, but not to crimes
of basic intent.
2. The Majewski rule states that Self-induced (voluntary) intoxication is no defence to a crime of basic
intent as the defendant’s actions in becoming intoxicated voluntarily is in itself reckless behaviour – he knows
there is a risk he will behave badly or criminally, but goes ahead anyway.
3. In otherwords, as long as the P can prove D was drunk at some time upto and including the offence this
satisfies the MR of the offence.

Crimes of specific intent- Crimes of specific intent have sometimes been stated to include crimes where the
offence can only be committed intentionally ie where recklessness will not suffice eg murder, s.18 wounding
and GBH. Another definition often used is where the offence requires an ulterior intent i.e. one which requires
proof of an intent which goes beyond the prohibited act eg criminal damage with intent to endanger life.
Crimes which have been categorised as being 'specific intent' crimes include: Murder and S.18 GBH.

The approach taken in crimes of specific intent: Where a crime is categorised as being one of specific intent,
the D is allowed to rely on their intoxication to demonstrate that they lacked the mens rea of the offence. This
is subject to the caveat that a drunken intent is nevertheless an intent.

Sheehan & Moore v R (1975): In revenge for a minor theft the two D’s, who were voluntarily drunk poured
petrol of the V and set him on fire, killing him. D’s arguments were similar to Beard. It was held as the P could
not establish specific intent for GBH S18 then they were not guilty of murder. However, the D’s were found
guilty of the alternative basic intent crime of manslaughter, so where there is an alternative basic intent crime
recklessness may be proved for this offence.

Crimes of basic intent- Crimes which have been categorised as crimes of basic intent include: Assault, battery,
ABH and s.20 GBH (DPP v Majewski)

 Sexual assault R v Heard [2007]

 Rape R v Woods (1982)
 Taking a conveyance without consent R v MacPherson

The approach taken in crimes of basic intent- Where a defendant's intoxication is voluntary and the crime is
one of basic intent, the defendant is not permitted to rely on their intoxicated state to indicate that they lack
the mens rea of the crime.

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