Context of contract law is a common law defence

Duress in the context of contract law is a common law defence, and if one is successful in proving that the contract is vitiated by duress, the contract may be rescinded, since it is then voidable.

Duress has been defined as a "threat of harm made to compel a person to do something against his or her will or judgment; esp., a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition". - Black's Law Dictionary (8th ed. 2004)

Duress in contract law falls into two broad categories:

Physical duress, and

Economic duress

The essence of the defence of duress by threats is that a defendant would not have committed a crime but for the threats of another person. Consider how and why the courts have limited the availability of the defence. The defence of duress is a common law defence, which has long been recognised as excusing the defendant completely from liability, being a “true defence". D argues that a supervening factor should preclude liability. The force or threat of force is employed specifically for the purpose of compelling D to commit a criminal offence. The Australian case of Hurley and Murray (1967) gave a summary of the requirements and restrictions of the defence. D must be threatened with death or serious injury, the threat must be imminent and impending, D's belief in the threat must be reasonable, and a person of “ordinary firmness" must similarly have yielded to the threat.


Duress noun. The use of force, false imprisonment or threats (and possibly psychological torture or "brainwashing") to compel someone to act contrary to his/her wishes or interests. If duress is used to get someone to sign an agreement or execute a will, a court may find them null and void. A defendant in a criminal prosecution may raise the defense that others used duress to force him/her to take part in an alleged crime. The most famous case is that of publishing heiress Patty Hearst, who was kidnapped, raped, imprisoned and psychologically tortured until she joined her captors in a bank holdup and issued statements justifying her actions. She was later convicted of the bank robbery, but was eventually pardoned by President Jimmy Carter.

Duress noun, bondage, captivity, coaction, coercion, compulsion, confinement, constraint, control, dominance, enforcement, exaction, force, high pressure, impressment, necessitation, obligation, press, pressure, repression, restriction, stress, subjection, subjugation, threat

Associated concepts: actionable duress, business compullion, defense of duress, duress of goods, duress of property, legal duress, moral duress, payment under duress, undue influence

Foreign phrases: Vani timores sunt aestimandi, qui non cadunt in constantem virum. (Those fears are to be regarded as groundless which do not affect an ordinary man). Nihil consensui tam contrarium est quam vis atque metus. (Nothing is so contrary to consent as force and fear). Vani timoris justa excusatio non est. (A frivolous fear is not a lawful excuse).

Duress: An actual or a threatened violence or restraint of a man's person, contrary to law, to compel him to enter into a contract, or to discharge one. 1 Fairf. 325. Sir William Blackstone divides duress into two sorts: First. Duress of imprisonment, where a man actually loses his liberty. If a man be illegally deprived of his liberty until he sign and seal a bond, or the like, he may allege this duress, and avoid the bond. But, if a man be legally imprisoned, and either to procure his discharge, or on any other fair account, seal a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. 2 Inst. 482; 3 Caines' R. 168; 6 Mass. R. 511; 1 Lev. 69; 1 Hen. & Munf. 350; 5 Shepl. R. 338. Where the proceedings at, law are a mere pretext, the instrument may be avoided. Aleyn, 92; 1 Bl. Com. 136. Second. Duress per minas, which is either for fear of loss of life, or else for fear of mayhem, or loss of limb,; and this must be upon a sufficient reason. 1 Bl. Com. 131. In this case, a man way avoid his own act. Id. Lord Coke enumerates four instances in which a man may avoid his own act by reason of menaces: 1st. For fear of loss of life. 2nd, of member. 3rd, of mayhem. 4th, of imprisonment. 2 Inst. 483; 2 Roll. Abr. 124 Bac. Ab. Duress; id. Murder.


1.1 Definition

Duress or coercion (as a term of jurisprudence) is a possible legal defence, one of four of the most important justification defences , by which defendants argue that they should not be held liable because the actions that broke the law were only performed because of extreme unlawful pressure . Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]". The notion of duress must be distinguished both from undue influence in the civil law and from necessity which might be described as a form of duress by force of circumstances. Note that in criminal law, a duress defence is similar to a plea of guilty, admitting partial culpability, so it could possibly lead to an easy conviction of a criminal.

Duress or coercion can also be raised in an allegation of rape or sexual assault to negate a defence of consent on the part of the person making the allegation.

In this situation, the defendant has actually done everything to constitute the actus reus of the crime and has the mens rea because he or she intended to do it in order to avoid some threatened or actual harm. Thus, some degree of culpability already attaches to the defendant for what was done. In the criminal law, the defendant's motive for breaking the law is usually irrelevant although, if the reason for acting was a form of justification, this may reduce the sentence. The basis of the defence argues that the threats made by the other person actually overwhelmed the defendant's will and would also have overwhelmed the will of a person of ordinary courage (a hybrid test requiring both subjective evidence of the accused's state of mind, and an objective confirmation that the failure to resist the threats was reasonable), so that his or her entire behaviour was involuntary. Thus, the liability should be reduced or discharged, making the defence one of exculpation.

The extent, to which this defence should be allowed, if at all, is a simple matter of public policy. A state may say that no threat should force a person to deliberately break the law, particularly if this breach will cause significant loss or damage to a third person. Alternatively, a state may take the view that even though people may have ordinary levels of courage, they may nevertheless be coerced into agreeing to break the law and this human weakness should have some recognition in the law.

A variant of duress involves hostage taking, wherein a person is forced to commit criminal act under the threat that their family member or close associate will be immediately killed should they refuse. This has been raised in some cases of ransom wherein a person commits theft or embezzlement under orders from a kidnapper in order to secure their family member's life and freedom.

In American legislation system duress considered as the unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform.

Duress also encompasses the same harm, threats, or restraint exercised upon the affected individual's spouse, child, or parent.

Duress is distinguishable from Undue Influence, a concept employed in the law of wills, in that the latter term involves a wrongdoer who is a fiduciary, one who occupies a position of trust and confidence in regard to the testator, the creator of the will.

Duress also exists where a person is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition.

As a defense to a civil action, the federal Rules of Civil Procedure require that duress be pleaded affirmatively.

Except with respect to Homicide, a person who is compelled to commit a crime by an unlawful threat from another person to injure him, her, or a third person, will generally not be held responsible for its commission.

1.2 Requirements

In order for duress to qualify as a defence, four requirements must be met:

Threat must be of serious bodily harm or death

Harm threatened must be greater than the harm caused by the crime

Threat must be immediate and inescapable

The defendant must have become involved in the situation through no fault of his or her own

A person may also raise a duress defence when force or violence is used to compel him to enter into a contract, or to discharge one.

1.3 Physical Duress

1.3.1 Duress to the person

Professor Ronald Griffin, Washburn University School of Law, Topeka, KS, puts physical duress simply: "Your money or your life." In Barton v. Armstrong [1976] AC 104, a decision of the Privy Council [1] , Armstrong threatened to kill Barton if he did not sign a contract, which was set aside due to duress to the person. An innocent party wishing to set aside a contract for duress to the person need to prove only that the threat was made and that it was a reason for entry into the contract; the onus of proof then shifts to the other party to prove that the threat had no effect in causing the party to enter into the contract. Duress can be made also by social influence. Courts frown on this type of contract because there is really no manifestation of mutual assent "meeting of the minds" or agreement to the terms. Rather, when someone is threatened and agrees to act to avoid physical harm by the party making the offer, all truly have is a mirror of the other party's manifestation of mutual assent not the manifestation of mutual assent by the party being forced or induced to assent to the terms of the contract. Therefore, the meeting of the minds "in truth" does not exist. Since, there is no meeting of the minds there can be no contract.

1.3.2 Duress to goods

In such cases, one party refuses to release the goods belonging to the other party until the other party enters into a contract with them. For example, in Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298, the contract was set aside after Hawker Pacific's threats to withhold the helicopter from the plaintiff unless further payments were made for repairing a botched paint job.


As Said before, in Duress Definition (Chapter 1), duress is where a person was forced by someone else to break the law under an immediate threat of serious bodily harm befalling himself or someone else. If duress is established it is a complete defence resulting in an acquittal.

2.1 How to Establish Duress by Threat

There is a two part test to satisfy to succeed with the defence of duress, this includes a subjective and objective limb.

The subjective Limb: Part 1 of the test for duress by threat

‘Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed the threatening person had said or done, he had good cause to fear that if he did not so act the threatening person would kill him... or cause him serious physical injury?’ (Howe v Bannister)

It is essential that the defendant must genuinely believe in the efficacy of the threat he claims compelled him to act in the way he did. The belief must also be a reasonable belief as well as a genuine one.

The Objective Limb: Part 2 of the test for duress by threat

‘If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would have not responded to whatever he reasonably believed the threatening person said or did by doing as the defendant did?’

This requirement is for the prosecution team to prove that a reasonable man what not have acted in the same way as the defendant given the circumstances. The question then arises as to what characteristics of the defendant can be considered when considering them against the reasonable man and should the jury consider the reasonable man as being a person with the same characteristics?

2.2 The Threat

The threat will usually be made to the defendant but cases have also included the defendant’s:

Wife and children (Ortiz);

Mother (R v K); and

Girlfriend (Hurley).

In Shayler, the Court of Appeal stated that the threats must be directed towards the defendant or a person for whom he has responsibility or for whom the situation makes him responsible, e.g., where the threat is made to set off a bomb unless the defendant performs the unlawful act.

The threats must be directed at the commission of a particular offence. In R v Cole, the defendant was charged with committing a number of robberies at building societies and stated that he had acted under duress. He had owed money to money-lenders who had threatened him, his girlfriend, and their child with violence if the money was not repaid. The trial judge ruled that the facts did not give rise to the defence as the threats had not been directed at the commission of a particular offence, but to the repayment of the debt. The defendant’s appeal against conviction was dismissed. It was held that the defence of duress by threats was only made out where the threatener nominated the crime to be committed by the defendant. In the present case the threatener had indicated that he wanted the defendant to repay the debt, an action that, if carried out, would not necessarily involve the commission of an offence.

The defendant is not guilty of crime(s) if (he/ she) acted under duress. The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ or someone else's) life would be in immediate danger if (he/she) refused a demand or request to commit the crime(s). The demand or request may have been express or implied.

The defendant's belief that (his/her/ or someone else's) life was in immediate danger must have been reasonable. When deciding whether the defendant's belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed.

A threat of future harm is not sufficient; the danger to life must have been immediate.

The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, then the defendant is not guilty of crime(s).

Note: This defence does not apply to the crime of charges of murder.

2.3 Court’s Instructional Duty

The court has a sua sponte duty to instruct on a defence when the defendant is relying on this defence, or if there is substantial evidence supporting the defence and it is not inconsistent with the defendant's theory of the case. (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [addressing court's sua sponte instructional duties on defences and lesser included offenses generally]; People v. Sedeno (1974) 10 Cal.3d 703, 716-717 [112 Cal.Rptr. 1, 518 P.2d 913], overruled by Breverman, supra, on a different point; see also People v. Subielski (1985) 169 Cal.App.3d 563, 566-567 [211 Cal.Rptr. 579] [no sua sponte duty because evidence did not support complete duress].)

As provided by statute, duress is not a defence to crimes punishable by death. (Pen. Code, 26(6); People v. Anderson (2002) 28 Cal.4th 767, 780 [122 Cal.Rptr.2d 587, 50 P.3d 368] [duress is not a defence to any form of murder].) If such a crime is charged, the court should instruct, using the last bracketed paragraph, that the defence is not applicable to that count. However, "duress can, in effect, provide a defence to murder on a felony-murder theory by negating the underlying felony." (Id. at p. 784.) If the defendant is charged with felony-murder, the court should instruct that the defence of duress does apply to the underlying felony.

2.4 Related Instructions

The defence of duress applies when the threat of danger is immediate and accompanied by a demand, either direct or implied, to commit the crime. (People v. Heath (1989) 207 Cal.App.3d 892, 899-901 [255 Cal.Rptr. 120]; People v. Steele (1988) 206 Cal.App.3d 703, 706 [253 Cal.Rptr. 773].) If the threat is of future harm or there is no implicit or explicit demand that the defendant commit the crime, the evidence may support instructing on the defence of necessity. (See CALCRIM No. 3403, Necessity.)

2.5 Necessity Distinguished

Although evidence may raise both necessity and duress defences, there is an important distinction between the two concepts. With necessity, the threatened harm is in the immediate future, thereby permitting a defendant to balance alternative courses of conduct. (People v. Condley (1977) 69 Cal.App.3d 999, 1009-1013 [138 Cal.Rptr. 515].) Necessity does not negate any element of the crime, but rather represents a public policy decision not to punish a defendant despite proof of the crime. (People v. Heath (1989) 207 Cal.App.3d 892, 901 [255 Cal.Rptr. 120].) The duress defence, on the other hand, does negate an element of the crime. The defendant does not have the time to form the criminal intent because of the immediacy of the threatened harm.


Duress cannot reduce murder to manslaughter. (People v. Anderson (2002) 28 Cal.4th 767, 783-785 [122 Cal.Rptr.2d 587, 50 P.3d 368] [only the Legislature can recognize killing under duress as new form of manslaughter].)

3.1 Mental State or Intent

Evidence of duress may be relevant to determining whether the defendant acted with the required mental state, even if insufficient to constitute a complete defence. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99-100 [17 Cal.Rptr.3d 710, 96 P.3d 30] [noting that court properly instructed that duress may be considered on the question of whether the defendant acted with the proper mental state].)

3.2 Great Bodily Harm

Penal Code section 26(6) discusses life-endangering threats and several older cases have outlined the defence of duress in the literal language of the statute. However, some cases have concluded that fear of great bodily harm is sufficient to raise this defence. It is clear, however, that threats of great bodily harm are sufficient in the context of necessity

3.3 Third Person Threatened

In People v. Pena (1983) 149 Cal.App.3d Supp. 14, 21-25 [197 Cal.Rptr. 264], the court held that the defences of necessity and duress may be based on threats of harm to a third party. Although Pena is regarded as a necessity case, its discussion of this point was based on out-of-state and secondary authority involving the defence of duress. No other California cases discuss threats made to a third party and duress.

3.4 The Test for Duress

The two-stage test for duress is contained in R v Graham, which was subsequently approved by the House of Lords in R v Howe. The jury should consider:

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.

Would a sober person of reasonable firmness sharing the defendant’s characteristics have responded in the same way to the threats?

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 it as a separate defence in its own right.

3.5 Immediacy of the Threat

The threat must be “immediate" or “imminent" in the sense that it is operating upon the accused at the time that the crime was committed. If a person under duress is able to obtain the protection of the law, s/he must do so. When the threat has been withdrawn or becomes ineffective, the person must stop committing the crime as soon as s/he reasonably can. In R v Hudson & Taylor, it was held that if the defendant has an opportunity to seek help but fears that police protection will be ineffective, the matter may still be left to the jury. However, in Hasan [2005] UKHL 22 (see below for facts), Lord Bingham felt that this was too favourable to the defendants and stated that it should be made clear to juries that:

“... if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged."

The circumstances in which the threats were made must also have offered no reasonable opportunity for evasive action. But, taken together, the questions of causation and immediacy have created a weakness in the limitations placed on the defence. In R v Hudson and Taylor 1971 2 QB 202, two young women who had witnessed a serious assault were intimidated and refused to identify the attacker in court. They were charged with perjury but allowed a conditional discharge. The court was prepared to allow leniency because these women lived in a community where physical retaliation for co-operating with the police was routine, and they had no reasonable means, given their age, experience, and lack of physical strength, of avoiding the implementation of the threat. This weakened the requirement that the threat's implementation must be so imminent that the defendant had to decide in that moment whether to break the law, and it has given rise to cases such as R v Cole 1994 Crim. LR 582 in which a man robbed several building societies to avoid the threats of a debt collector. Simon Brown LJ. at p583 held that the peril relied on to support the plea of necessity lacked imminence, and the degree of directness and immediacy required of a sufficient nexus between the suggested peril and the offence charged. The one making the threats had not nominated the crimes to be committed by the defendant. He had simply indicated that he wanted the defendant to repay the debt which would not necessarily involve the commission of an offence.

3.6 Violent Gangs and Persons

The defence of duress is not available to persons who commit crimes as a consequence of threats from members of violent gangs which they have voluntarily joined. A defendant who joins a criminal association which could force him to commit crimes can be blamed for his actions: R v Sharp.

However, the defence is not automatically unavailable because the duress comes from a criminal organisation which the defendant has joined. It depends on the nature of the organisation and the defendant’s knowledge of it. If s/he was unaware of any propensity to violence, the defence may be available. The court so held in: R v Shepherd.

The principle in R v Sharp was extended by the Court of Appeal in R v Ali to associations with a violent person. This was endorsed by the House of Lords in Hasan.

3.7 Limitations

Duress is considered to be a general defence in criminal law, but there are a number of offences in relation to which duress cannot be raised as a defence:

Murder (R v Howe); and

Attempted Murder (R v Gotts).

3.8 When a Threat is Improper

A threat is improper if:

What is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property,

What is threatened is a criminal prosecution,

What is threatened is the use of civil process and the threat is made in bad faith, or

The threat is a breach of the duty of good faith and fair dealing under a contract with the recipient.

A threat is improper if the resulting exchange is not on fair terms, and

The threatened act would harm the recipient and would not significantly benefit the party making the threat, or

What is threatened is otherwise a use of power for illegitimate ends.

3.9 Intoxication

When apply the objective limb of the 2 part test for establishing the defence of duress by threat, should disregard a person’s voluntary intoxication as a characteristic of the defendant to be considered,

3.10 Mental health

The courts have held that the duress must come from an extraneous source, rather than internal thought processes. The case of R v Rodger & Rose [1998] 1 Cr App R 143 involved two prison inmates who had escaped. They sought to utilise the defence of duress of circumstances on the grounds that they were compelled to escape after becoming depressed whilst in prison, and fearing that unless they escaped they would become suicidal. The court decided that as a matter of public policy, the source of the duress must be from an external source and not from the internal thought processes associated with mental illness.

This decision may well have been reached to prevent such an absurdity from passing into law however as in Shayler [2002] 2 WLR 754 (House of Lords); Lord Woolf remarked in obiter that the defence should be extended to include acts designed to protect a person's mental, as well as physical health, from serious injury

3.11 Characteristics of the Defendant to be Considered

These considerations have all been addressed in previous cases that have had to take certain factors into account. The leading case that has decided what factors to consider is that of Bowen.

“Pliable, venerable, timid or susceptible to threats" are not characteristics to be considered against the reasonable man test, and the ordinary reasonable man will not contain these flaws.

Characteristics to take into account include Age, Gender, Pregnancy, Serious physical disability, recognised mental illness, or psychiatric conditions.

Characteristics that may be relevant to provocation are not necessarily relevant here, in a case of duress. Homosexuality for instance, is relevant to provocation, but cannot be considered in a plea of duress, as there should be no reason to think that homosexuals are less able to resist threats than me or you.

NOTE: “Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be relevant".

Psychiatric evidence showing that suffering from a recognised psychiatric injury that will leave more susceptible to threats can be considered to aid the jury in reaching a decision as to whether the reasonable man suffering the same psychiatric illness may act in the same way.

3.12 How immediate was the threat

The threat must have been sufficiently compelling to destroy a person’s will. The lack of immediacy will not automatically ban the defence of duress; the surrounding circumstances will play a big part in whether the immediacy of the threat should allow or not the defence of duress.

3.13 Opportunity to seek police protection

If someone has a chance to seek police protection and they fail to take this opportunity should not be able to rely on the defence of duress. The jury when considering whether the defendant took the reasonable steps to ask or search for police protection or may be have not taken those steps should have consideration for a person’s age and circumstances.

3.14 Mixed Motives

Whether or not a person’s has mixed motives is concerned with whether there was more than one reason for them committing the crime in question. If a person committed a crime due to duress as well as there being a financial gain for example, they will not be able to rely on the defence of duress by threat as he may have committed the crime for the other reason if the threat was not present.

3.15 Voluntarily Exposure to Threats

The defence of Duress by threat is unavailable if the person seeing to rely on the defence voluntarily joins a criminal gang, or associates with individuals known for violence and criminal activities, with the chance that they may pressure into committing a crime whether immediately or in the future.

3.16 When is duress by threat available

The Defence of duress by threat is considered a general defence, which basically means it is a defence to any crime including manslaughter. However, Duress by threat is unavailable as a defence to murder, accessory to murder or attempted murder (see 3.17 bellow).

3.17 Duress is Unavailable as a Defence to Murder, Accessory to Murder or Attempted Murder

All people should be encouraged to act heroically. If duress was an accepted defence to murder then this would withdraw the protection of the criminal law from innocent members of society and cast a cloak of protection on the person who committed the crime of murder, accessory to murder or attempted murder.


Duress and murder is now governed by the House of Lords' decision in R v Howe and Others [1987] AC 417, in which it was held that duress would not be available to a defendant who committed murder either as principal or accomplice.

A.1 Examples

In R v Howe, two appellants, Howe and Bannister, participated with others in torturing a man who was then strangled to death by one of the others. These events were repeated on a second occasion but this time it was Howe and Bannister who themselves strangled the victim to death. They claimed that they had acted under duress at the orders of and through fear of Murray who, through acts of actual violence or threats of violence, had gained control of each of the defendants. The House of Lords dismissed their appeals against conviction. Lord Hailsham LC made the following points:

Hale's Pleas of the Crown (1736) and Blackstone's Commentaries on the Laws of England (1857) both state that a man under duress ought rather to die himself than kill an innocent.

If the appeal (and consequently the defence) were allowed the House would also have to say that R v Dudley and Stephens was bad law (which it was not prepared to do). A person cannot be excused from the one type of pressure on his will (ie, duress) rather than the other (ie, necessity).

In the present case, 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.

In the case where the choice is between the threat of death or serious injury and deliberately taking an innocent life, a reasonable man might reflect that one innocent human life is at least as valuable as his own or that of his loved one. In such a case a man cannot claim that he is choosing the lesser of two evils. Instead he is embracing the cognate but morally disreputable principle that the end justifies the means.

If a mandatory life sentence would be harsh on any particular offender there are effective means of mitigating its effect - the trial judge may make no minimum recommendation, the Parole Board will always consider a case of this kind, and the prerogative of mercy may be used [2] .


In R v Gotts [1992] 2 AC 412, the defendant, aged 16, seriously injured his mother with a knife. In his defence to a charge of attempted murder he claimed that his father had threatened to shoot him unless he killed his mother. The trial judge ruled that such evidence was inadmissible since duress was not a defence to such a charge. The defendant pleaded guilty and then appealed. The House of Lords held that the defence of duress could not be raised where the charge was one of attempted murder. Lord Jauncy stated:

"The reason why duress has for so long been stated not to be available as a defence to a murder charge is that the law regards the sanctity of human life and the protection thereof as of paramount importance. Does that reason apply to attempted murder as well as to murder? As Lord Griffiths pointed out [in Howe] … an intent to kill must be proved in the case of attempted murder but not necessarily in the case of murder. Is there any logic in affording the defence to one who intends to kill but fails and denying it to one who mistakenly kills intending only to injure? …

It is of course true that withholding the defence in any circumstances will create some anomalies but I would agree with Lord Griffiths (Reg. v Howe) that nothing should be done to undermine in any way the highest duty of the law to protect the freedom and lives of those who live under it. I can therefore see no justification in logic, morality or law in affording to an attempted murderer the defence which is held from a murderer. The intent required of an attempted murderer is more evil than that required of the murderer and the line which divides the two is seldom, if ever, of the deliberate making of the criminal. A man shooting to kill but missing a vital organ by a hair's breadth can justify his action no more than can the man who hits the organ. It is pure chance that the attempted murderer is not a murderer. …"

In general, courts do not accept a defence of duress when harm done by the defendant is greater than the court's perception of the harm threatened. This is a test of proportionality. In Howe (1987) AC 417 the court held that the jury should consider:

Whether the defendant acted as he did because he honestly believed that his life was in immediate danger (a subjective test)

Would a reasonable person of ordinary courage sharing the defendant's characteristics have responded in the same way to the threats? (an objective test)

Howe was a member of a gang that tortured and strangled a man. On a second occasion, Howe strangled the victim. He claimed to have acted out of fear for one Murray who, through threatened and actual violence, had gained control of the group. Previously, in DPP for N. Ireland v Lynch (1975) AC 653, the Lords had held by a majority that duress was available to an accomplice. On this occasion, the Lords held that one of the relevant public policies underpinning the criminal law must be to protect innocent lives and to set a standard of behaviour which ordinary men and women are expected to observe if they are to avoid criminal responsibility. In cases where the choice is between the threat of death or serious injury and deliberately taking an innocent life, a reasonable man might reflect that one innocent human life is at least as valuable as his own or that of his loved one. In such a case a man cannot claim that he is choosing the lesser of two evils. Rather he is adopting the understandable but morally dubious principle that the end justifies the means. Similarly, R v Gotts (1992) 2 AC 412 held that duress is not a defence to attempted murder.