Duress and Necessity Lecture
1.0 Duress
Duress applies as a defence where a person commits a crime as a response to a threat of death or serious injury either to themselves or another.
The defence of duress is a general defence but there are certain limitations on its use. It cannot be raised in defence to murder, attempted murder or by an accessory to murder (R v Howe [1987] AC 417). In cases where the defence of duress is pleaded successfully it has the effect of absolving the defendant of liability. This is because whilst he clearly possesses the requisite mens rea for the offence, in carrying out the actus reus he acts under compulsion. The act may be both voluntary and intentional. It can be seen in this respect that duress differs from those defences such as intoxication or mistake, which may negate the mens rea, and automatism, which concerns whether the act was voluntary. It also differs from justificatory defences such as self defence as it does not justify the crime but instead offers an excuse for the behaviour of the defendant.
1.1 Types of Duress
In criminal law the defence of duress takes two different forms:
- Duress by threats
- Duress by circumstance
1.1.1 Duress by Threat
The defence of duress by threat was described by the Irish Court of Criminal Appeal in A-G v Whelan [1933] IEHC 1, [1934] IR 518 as arising in circumstances where the defendant was ordered to commit an offence whilst subject to threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance.
1.1.2 Duress by Circumstance
Duress of circumstances arises where it is not a person that provides a threat to the defendant but the nature of the situation. It might be that another person creates the threatening situation but unlike duress by threat there is no requirement that a person specifies to the defendant that a crime must be committed, so long as there is a sufficient link between the situation and the crime.
1.2 Elements of the Defence
The defence applies similarly in relation to both duress by threat and duress of circumstances and both are governed by the same criteria. Accordingly, most of the cases are authority for both forms of the defence.
The defence was set out in R v Graham [1982] 1 All ER 801. It set out two elements to the defence: a subjective element and an objective element. These are:
- Was the defendant or might the defendant have been induced to act as he did because he reasonably believed that if he did not, death or serious injury would result to him, an immediate relative or someone for whose safety he reasonably regarded himself as responsible?
- Would a sober person of reasonable firmness, sharing the defendant’s relevant characteristics, have been driven to act in the situation in the way as he did?
Once there is sufficient evidence to raise duress, the prosecution must disprove it beyond reasonable doubt. The following limits also apply:
- There must be immediacy, and;
- The defendant must not have missed an opportunity to escape the threat without committing a crime.
Finally, even where this has been established, following the ruling in R v Hasan [2005] 2 AC 467 the defence will be excluded where a person voluntarily becomes or remains associated with people who are engaging in criminal activity and foresaw or ought reasonably to have foreseen the risk of compulsion by threats of violence from them or their associates. The House of Lords in handing down the ruling in Hasan were concerned that the defence was being too broadly applied to the benefit of defendant’s who were involved in drugs and organised crime. The House sought to restrict the defence and stop the increasing use of the defence in these situations.
Case in Focus: R v Hasan [2005] 2 AC 467
The defendant, Hasan, worked for an escort agency ran by a lady named Taeger. The agency offered prostitution services to its clients and Hasan would drive the women to the male customers and acted as a minder.
During Hasan’s employment, Taeger became involved with a man named Sullivan who was a well known drug dealer with a reputation for violence. Sullivan took over most of Hasan’s work escorting the ladies and a bad feeling existed between the two of them as a result of this. Hasan knew that Sullivan was dangerous and violent as Sullivan had previously bragged to him about 3 murders he had committed recently.
Hasan said that Sullivan and an accomplice ambushed him outside his house. Sullivan ordered Hasan to carry out a burglary on one of the escort agency’s clients. Sullivan stated that his accomplice would go with Hasan to make certain that the burglary was carried out and if it transpired that Hasan did not carry out the burglary, Sullivan would bring harm to Hasan and his family.
Hasan was later arrested and convicted of aggravated burglary. He sought to argue duress but this was rejected by the jury. He appealed on the basis of misdirection and the case went all the way to the House of Lords.
The House of Lords restored the conviction. Lord Bingham stated at page 499, paragraph 38, that “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. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them.”
Where duress is left to the jury, the question is whether the threat was of death or serious injury and whether a sober person of reasonable firmness might have acted as the defendant did. For example, a threat of a slap would not justify the committing of a robbery and a threat of causing grievous bodily harm could excuse theft only if the other requirements of duress were met.
1.3 The Defence Explained
- Specified crime
- Immediacy
- Facing a threat of death or serious injury
- To the defendant or a person for whom he has responsibility
- The threat must overbear the ordinary powers of human resistance.
Specified crime
In relation to duress by threat, the threat issued must be accompanied by an express or implied demand to commit the offence charged. The threat may be relayed through someone else (R v Brandford [2016] EWCA Crim 1794). A threat demanding money or circumstance where money is needed which the defendant decides to avoid by committing a crime to gain the money is insufficient.
Case in Focus: R v Cole 1994 Crim LR 582
The defendant, Cole, borrowed money from violent loan sharks. A loan shark is a lender that charges exceptionally high amounts of interest on the sum borrowed. The amount due got out of hand and the lenders threatened Cole, his girlfriend and his child if the money was not sharply repaid. Cole robbed two building societies to raise the necessary funds. In response to his charge for the offence he attempted to raise the defence of duress. The Court held that there was an insufficient link between the loan and the crime. He was not told to steal the money at any point by the lenders, and therefore the defence failed.
Immediacy
The threat must be operative when the offence is committed. Under Hasan, the defendant must reasonably expect the threat to be carried out immediately or almost immediately if he does not comply.
Case in Focus: R v Hudson and Taylor [1971] 2 QB 202
The two female defendants had witnessed a fight. One of the men involved was charged with wounding the other. Hudson said that she was threatened with being cut up if she gave evidence against him. She passed the warning to Taylor, who had also been warned that she could be hurt. On the day of the trial they saw one of the men who had threatened Hudson in the public gallery. Scared, the defendants lied and failed to identify the accused. They were charged with perjury. The trial judge withdrew duress from the jury because, in his view, the threat could not be carried out in the courtroom. They appealed successfully with the Court holding that there must be a present threat but the threatened harm need not follow instantly. Lord Parker read Widgery LJ’s judgement and stated at pages 206-207 “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. Hence, an accused who joins a rebellion under the compulsion of threats cannot plead duress if he remains with the rebels after the threats have lost their effect and his own will has had a chance to re-assert itself. Similarly, a threat of future violence may be so remote as to be insufficient to overpower the will at that moment when the offence was committed, or the accused may have elected to commit the offence in order to rid himself of a threat hanging over him and not because he was driven to act by immediate and unavoidable pressure. In none of these cases is the defence of duress available because a person cannot justify the commission of a crime merely to secure his own peace of mind.”
Case in Focus: R v Abdul Hussain [1999] Crim LR 570
The defendants were Iraqi Shia Muslims living in Sudan. Abdul-Hussain had been sentenced to death in Iraq following a confession extracted by torture. They feared that they would be deported to Iraq and killed. They hijacked an aeroplane which eventually landed at Stansted where after negotiations they surrendered to the UK authorities. Initially it was ruled that the defence of duress could not apply as there was no immediacy. On appeal the Court held that the danger had to be imminent but its execution need not be immediate. The convictions were quashed because the defence should have been left to the jury.
In Hasan the House of Lords criticised the approach to immediacy in Hudson and Taylor and, to the extent that it followed that decision, Abdul-Hussain. If the defendant could reasonably have avoided the danger, for example by seeking police protection, the defence fails.
Facing a threat of death or serious injury
This element is fairly self-explanatory and sets out that the threat that the defendant faces must be one of death or serious physical injury. A threat of serious psychological injury alone is insufficient (R v Baker and Wilkins [1997] Crim LR 497). Blackmail or other threats to reveal sensitive information are not therefore sufficient but may be taken into account by the courts where they exist alongside relevant threats of death or serious injury.
Case in Focus: R v Valderrama-Vega [1985] Crim LR 220
The defendant said that he faced threats of death or serious injury, financial pressure and threats to disclose his homosexuality if he did not participate in the importation of illegal drugs. Other pressures could be taken into account alongside the threats of death or serious injury. In R v Ortiz (1986) 83 Cr App R 173 the Court of Appeal explained that the jury should be asked whether the defendant acted because of the qualifying threats.
To the defendant or a person for whom he has responsibility
As above, this element is clear in that the threat that arises from the individual or the circumstance must be a threat against either the defendant himself or a member of his immediate family or a person for whose safety he reasonably regards himself as responsible.
Case in Focus: R v Shayler [2001] 1 WLR 2206
The defendant worked for Mi5. As a former member of the Security Service he remained bound by the Official Secrets Act 1989. In spite of this the defendant provided a journalist with confidential documents pertaining to national security issues. The defendant was charged for this but contented that his disclosure had been necessary to protect the general public who faced a threat from the issues contained in the documents. The Court dismissed this reasoning and held that he could not rely on duress of circumstances on the facts he put forward. A general claim to protect the public did not establish an imminent danger to anyone for whose safety he reasonably regarded himself as responsible. Lord Woolf set out an example explaining the reasoning comparing two scenarios, one where a spy is captured and told his family will be murdered if he does not disclose information and another where a spy believes that someone somewhere at some time may possibly suffer if he does not disclose information to the public. He stated at paragraph 67 that “the first is a situation where almost certainly a defendant would be able to rely on the defence of necessity. The second position is one where a defendant can not possibly rely on the defence. Mr Shayler falls squarely within the second position on the spectrum.” The House of Lords dismissed his appeal, leaving the wider scope of necessity open (R v Shayler [2002] UKHL 11).
In contrast to Shayler, in some instances the situation existing can place the defendant in a position where he is responsible for the person in question. Consider the case of R v Conway [1989] QB 290.
Case in Focus: R v Conway [1989] QB 290
The defendant was driving a passenger in his car a Mr Tonna. A few weeks prior to this another man had been shot in a vehicle carrying Mr Tonna. The defendant understood that Mr Tonna had been the intended victim. He said that two men in plain clothes ran towards his car and he feared a fatal attack on Mr Tonna. He sped up to the point he was driving massively in excess of the speed limit and very recklessly. Unluckily for the defendant the car following them was actually an unmarked police car and he was duly charged with the reckless driving offence. At trial the defence of duress was refused but this was overturned by the appeal with the Court holding that the defence should have been allowed before the jury.
The threat must overbear the ordinary powers of human resistance.
The objective arm of the Graham test set out above acts so as to establish whether the threat faced would cause a reasonable person to act in the same way. The way of establishing that is to ask whether the given threat was so great that it would overbear the powers of ordinary human resistance. This focuses on three points:
- a reasonable belief
- a good cause of fear
- a sober person of reasonable firmness, sharing the characteristics of the defendant might act the same.
In applying this test, some but not all of the characteristics of the defendant may be taken into account. A recognised medical condition affecting the ability to resist a threat may be taken into account but a general nervous disposition cannot. In R v Martin (David Paul) [2000] 2 Cr App R 42, there was evidence of a psychiatric disorder. This condition meant that the defendant was more likely to interpret words and actions as a threat. Such evidence may bear on how the defendant understood the threat. Under Hasan the belief must still be reasonable. R v Bowen [1996] 4 All ER 837 is authority for the fact that age, sex, pregnancy or a serious physical disability may be relevant, but low IQ alone does not make a person less capable of resisting a threat. R v Flatt [1996] Crim LR 576 held that vulnerability attributable to self-induced drug addiction could not be given to the reasonable person.
Examination Point
This element of the defence is a favourite for focus in problem questions. Make sure that you clearly consider all of the characteristics of the defendant then specify whether these are relevant and can be applied to the person of reasonable firmness or whether they will be disregarded by the court altogether. This is a really good opportunity to show off your ability to critically apply the law so learn the relevant cases and characteristics so don’t miss your chance to shine!
1.4 When can the defence be used
As explained in the introductory notes, the defence of duress is a general defence and is available to raise in response to most charges, however there are some exceptions. Section 45 of the Modern Slavery Act 2015 provides a separate statutory defence for victims of slavery or trafficking, with different tests for adults and children and exclusions in Schedule 4. The following limits concern duress:
- Hasan confirms that the defence is not available in response to a murder charge. R v Gotts [1992] 2 AC 412 states that the defence is also not available to attempted murder. However R v Ness and Awan [2011] Crim LR 645 held that the defence is available in relation to a charge of conspiracy to murder.
- In Hasan Lord Bingham left open whether the defence is excluded for some forms of treason.
- Following R v Sharp [1987] QB 853, the defence is also excluded in cases where the defendant of his own will and with knowledge of the nature of the group, joins a violent criminal gang. However, where there was no reasonably foreseeable risk of coercion R v Shepherd(1988) 86 Cr App R 47 illustrates why membership alone does not exclude duress. The same principle applies to a terrorist group. Hasan suggests this goes further and that the defence will not be available where the defendant involves himself in criminal activity and the possibility of becoming exposed to compulsion should reasonably have been foreseen.
- Following on from the above, a debt to drug dealers does not of itself exclude duress. The question is whether the defendant voluntarily exposed himself to a reasonably foreseeable risk of compulsion by threats of violence.
- Due to the immediacy requirement, the defence will become obsolete in cases where the defendant could reasonably have taken effective evasive action.
2.0 Necessity
2.1 Concept of Necessity
This defence arises where the defendant successfully argues that due to a greater evil, it was necessary to commit the offence that he carried out. He had a choice between committing a criminal offence or allowing himself or another to suffer. In the situation the commission of the offence was the lesser of the two evils. The defence of duress discussed above, especially in situations of duress of circumstance is a specific form of a necessity defence. Self-defence is another example of necessity embodied in a more narrowly defined defence. Despite these allowances for necessity related defences the courts have been reluctant to recognise a general defence of necessity. The reluctance to recognise such defence can be seen in the historic and oft-cited ruling of R v Dudley and Stephens (1884) 14 QBD 273.
Case in Focus: R v Dudley and Stephens (1884) 14 QBD 273
The defendants were crew on a boat that was shipwrecked following a fearsome storm. A number of the crew had to abandon their vessel to board a lifeboat whereupon they were stranded for a number of days. The food did not last and they were left for over a week without food and 5 days without water. Dudley proposed drawing lots to decide which one would be killed to save the others. Brooks refused and no lots were drawn. The young cabin boy was not consulted. The defendants decided it would be more logical to kill the boy as he was near death anyway and had the least chance of survival. Dudley cut his throat with Stephens’s assent, and they fed on him to survive. The defendants were subsequently rescued and charged with the cabin boy’s murder. They attempted to raise a defence of necessity to the charge but the Court rejected it and found them guilty of murder.
Speaking at pages 286-287, Lord Coleridge stated “ it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it.”
He continued at pages 287-288 that “it is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be “No””.
Lord Denning echoed the sentiment expressed in Dudley and Stephens in the case of Southwark London Borough Council v Williams [1971] Ch 734 stating in his judgement that the defence of necessity would open a door which no man could shut. He cited the example of hunger operating as an excuse of stealing and argued this would open a way for all kinds of disorder. Homelessness would be a defence to trespass and no man’s property would be safe. This would spiral and he questioned where would the line be drawn. He stated therefore that it was necessary for the courts to take a firm stand for the sake of law and order and trust in such cases that charitable and good human nature would prevail.
Examination Point
A question on necessity is most likely to manifest itself as an essay question as to the rationale behind the defence and whether there should be a general defence. Study the extracts from the cases carefully and try and form your own arguments and opinions as critique and analysis. To assist you in doing this and open you up to the higher marks, do some research of your own and look at a range of academic materials, especially the primary cases and journals in order to gage some depth of understanding and diversity of opinion.
2.2 Requirements of the Defence
The idea of necessity arose in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 in relation to a doctor prescribing contraception to a girl under 16 without parental consent. The House of Lords held that a girl with sufficient understanding could consent for herself. The defence was then recognised by Lord Goff in Re F (Mental patient sterilisation) [1990] 2 AC 1 where he stated that there was indeed a defence of necessity and applied it in handing down his judgement.
Case in Focus: Re F (Mental patient sterilisation) [1990] 2 AC 1
The patient, F was an adult woman who had suffered from a severe mental disability since she was a baby. She had been an informal patient in a psychiatric hospital since she was a teenager and was described as having the verbal capacity of a two-year-old and the general mental capacity of a child of four or five. During her stay in the hospital she developed a sexual relationship with another patient. The staff were very concerned at the impact a potential pregnancy would have on her and knew that she would not be able to raise a child. Other forms of contraception were considered unsuitable for her. Her mother, acting on F’s behalf, applied to the Court seeking a declaration for lawful sterilisation which would need to be undertaken in the absence of F’s valid consent as she did not have the capacity to give it. The Court granted the declaration and in doing so established that the court then had no power to consent on behalf of F. The judges held that necessity could make treatment lawful if it was in her best interests. Today sections 1 to 5 of the Mental Capacity Act 2005 govern capacity, best interests and protection for acts of care or treatment. The Court of Protection can take a decision on the person’s behalf under section 16. Where sterilisation is the primary purpose, an application to the court will normally be appropriate.
Following the recognition of the defence, the case of Re A [2001] Fam 147 took this further. On the exceptional facts, the Court of Appeal held that the proposed separation would be lawful even though it would cause the death of one twin.
Case in Focus: Re A [2001] Fam 147, 149
The case involved two conjoined twins, Mary and Jodie. Jodie strong and capable of independent existence but Mary was very weak and depended entirely on Jodie to keep her alive. Doctors were certain that if left conjoined Mary would cause too much of a strain on Jodie and they would both be unable to survive. They believed that operating to separate them would kill Mary but it would give Jodie a high chance of living a good quality, independent life. The parents refused to allow this but the doctors applied to the Court for a declaration that this operation would be in the best interests of the children and lawful, even though it was inevitable that it would cause Mary’s death. The Court held that the operation could be carried out lawfully.
The judges in Re A gave different reasons. Ward LJ relied on a form of defence of Jodie, Brooke LJ on necessity, and Robert Walker LJ considered the operation justified and in the best interests of both twins. The requirements that must be filled in order for this defence to apply were set out by Lord Justice Brooke. These are that:
- the act is needed to avoid inevitable and irreparable evil;
- no more should be done than is reasonably necessary for the purpose to be achieved, and;
- The evil inflicted is not disproportionate to the evil avoided.
Following R v Quayle [2005] EWCA Crim 1415, the following requirement applies to duress of circumstances:
The danger must arise from external circumstances capable of objective assessment.
Where a defendant relies on duress of circumstances to protect someone else, Shayler illustrates a further limit:
A general concern for public safety is insufficient. The danger must threaten the defendant, his immediate family or someone for whose safety he reasonably regards himself as responsible.
2.3 Necessity in practice
The case of Re A recognised that the defence could be applied but the decision did not establish a general right to commit an offence whenever its benefits outweigh its harm. In fact, most of its success has been limited to medical cases to protect professionals and allow for patient’s best interests to be looked after. It has not yet gone so far as to protect patients acting in their own best interests in relation to self-medication cases.
Case in Focus: R v Quayle [2005] 1 WLR 3642
This was a conjoined appeal from five defendants, all convicted of drugs offences relating to the possession, importation or cultivation of cannabis and all appealing on the basis of the applicability of the defence of necessity in relation to their offences. The Court also heard an Attorney General’s reference concerning possession with intent to supply. The defendant’s were all arguing that in their instances the cannabis was solely for medical purposes for the relief of various painful conditions including HIV and Multiple Sclerosis. The Court shut down this argument and dismissed their appeals holding that no defence of necessity was applicable in their circumstances.
Regulation 16A of the Misuse of Drugs Regulations 2001 now provides for certain cannabis-based medicinal products to be ordered for patients, including unlicensed products prescribed by a specialist doctor, and for use in authorised clinical trials. It does not permit a patient to grow cannabis for personal medical use.
Outside of the medical arena the defence of duress of circumstances may afford a better route to defendants. For example, in R v Pommell [1995] 2 Cr App R 607 a defendant who said he took a gun from another man to prevent a shooting was entitled to have the defence left to the jury. Retaining the gun beyond the emergency could defeat the defence.
2.4 Arguments for a General Defence
Examination Point
The arguments against a general defence have already been discussed above. Revisit the notes on Dudley and Stephens and Southwark London Borough Council v Williams in relation to this. In order to provide strong critical analysis in a possible essay question on the issue it is vital to also consider and appreciate the arguments for a general defence. Don’t stop your research here. Consider which side of the discussion you agree with most, and look into further articles and relevant cases in order to strengthen your argument. Remember though in an essay on the topic you should set out both sides of the discussion before lobbying your view.
(i) Taking into account the defendant’s motive
The law holds that a person should only be responsible for acts of their own free will. The defence of automatism supports this whereby the defendant who totally loses voluntary control through an external cause may have a defence. Where the cause is internal, the separate rules on insanity may apply. This defence limits the recognition to a physical inability to exercise free will but does not encompass a circumstantial inability whereby although the defendant may physically be able to control his actions, realistically he has no choice but to act as he does, thus depriving him of his free will.
(ii) Impossible standards of morality
Not recognising a defence of necessity sets a standard whereby the law expects individuals to exercise good morals and obedience to the law above the basic human instinct of survival. Consider the case of Dudley and Stephens. Realistically, can it be reconciled with Re A, other than the fact that Dudley and Stephens were not medical professionals? A decision was taken to kill the person least likely to survive, the cabin boy in Dudley and Stephens and baby Mary in Re A. In both cases the decision was taken in order to effectuate the survival of the others, and in both cases if the decision had not been taken all parties involved would likely have met their death. In any case, this standard of morality handed down by the law is exceptionally high so as to criminalise human beings fighting for their survival in dire circumstances whilst at the same time imposing no liability for a duty to act on a passer-by who has no duty of care towards a child drowning in a lake. It can be argued that the law is inconsistent in this respect and should take a more level approach to the standard of morality expected from people.
(iii) Other jurisdictions recognise the defence
A general defence of necessity is recognised in many other countries and seemingly they still maintain a good level of lawfulness and have not descended into the anarchy that Lord Denning postulated in Southwark London Borough Council v Williams.
Hands on Example
The following problem question is designed to test your knowledge of the defence of duress and give you an opportunity to try and apply the elements of the defence in a practical context in response to an offence committed. Defence problem questions are not like other problem questions on offences where you establish the actus reus and mens rea and then apply them to see if they are fulfilled, so it may take a few attempts at them to adjust your style before you feel really confident at tackling them!
Take a look at the following scenario and identify any material facts as you read. Once you have done this, try and apply the defence using the case law we have looked at in these notes.
If you’re not feeling too confident about the question or the application of the defence there is absolutely no need to be concerned! Defences can and will take time to get your head around. By looking at exam style questions you are taking the right steps towards getting properly acquainted with them and when you have done enough it will become second nature! For now, a step by step outline answer has been set out and this contains all the points you need to follow and discuss when you address the scenario. Try and implement the structure and use this as guidance in writing or checking your own answer. Everything you need to know to answer this question has been discussed already so refer back to the notes to help you as you go. Good luck!
Aaron lives in an estate just outside Birmingham city centre. On the estate, there is a well-known group of lads that supply drugs around the estate. They make a lot of money and always sport designer brands and have the latest technology but they have a fearsome reputation and many of the members of the gang have been in prison at some point for violent crimes against other dealers and people who have been indebted to them. Aaron approaches the gang leader, Dean and tells him he wants in. Aaron is a little scared as he knows of the gangs reputation but Dean tells him as long as he stays on the right side of him he has nothing to worry about. For a few weeks things go well and Aaron makes a lot of money. He starts going to the casino and one night he loses massively at poker and ends up owing a lot of money to another player. Aaron pays up by giving him all the money from his drug sales that week. He is supposed to give the money to Dean’s right hand man Jay who takes the proceedings and then pays Aaron a cut out of that. When he goes to Jay with no money Jay is livid and tells Aaron that he must pay the money back by the next morning, even if he has to steal it, or he will be killed. Aaron knows that his brother’s girlfriend Susie is very well off and has seen her wear a diamond necklace. He decides to break into Susie’s house that night and steal the necklace. He sells it the next morning and is able to repay Jay in time to avoid the threat.
Aaron is subsequently charged with the burglary. Discuss Aaron’s ability to raise the defence of duress.
Aaron
What type of duress?
- Duress by threat as per A-G v Whelan as Jay has posed a verbal threat to Aaron.
- Applying R v Graham, have all the elements of the defence been satisfied?
- Specified crime: Jay has suggested to Aaron that he might need to steal to get the money but he has not specified exactly what he should steal or where from. Applying Cole, although the general offence of theft has been suggested this is not an absolute must as Jay is seemingly not bothered how he gets the money, as long as he gets it. The question is whether Jay’s words compelled the burglary charged. The absence of any demand to break into Susie’s house counts against Aaron.
- Immediacy: Under Hasan, which limited R v Hudson and Taylor and Abdul Hussain, the question is whether Aaron reasonably expected to be killed immediately or almost immediately if he failed to comply, and whether he could reasonably have avoided the threat. In this case, it could be argued that Aaron had ample time overnight to go to the police station but given the nature of the fact he was operating within a gang of people it is possible that this would not have negated the threat posed to him as one of the other gang members such as Dean would likely carry out the threat of death as revenge for grassing Jay up.
- Facing a threat of death or serious injury: In this case it is clear that Aaron is facing a threat of death.
- To the defendant or a person for whom he has responsibility: The threat is towards Aaron so this element is clearly satisfied.
- The threat must overbear the ordinary powers of human resistance: This is an objective test looking at a person of reasonable firmness in the circumstances of the defendant. On the facts Aaron does not have any relevant characteristics that would give him a reduced firmness and it is likely that a such person of reasonable firmness facing a real threat of death might have behaved in the same way.
Can the defence be used?
- The defence can be applied in relation to burglary as it is not one of the excluded offences. However applying Hasan, the defence will not be possible where the defendant has knowingly involved himself in a criminal organisation and should have reasonably foreseen that he may become the subject of their compulsion. Given the gang’s reputation it will be difficult to argue that Aaron would not have reasonably foreseen that, particularly as it is stated that he was nervous approaching Dean because of this.
- Given this it is highly unlikely that Aaron will be able to avail himself of the defence of duress.
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