Duress
Duress is a common law defence to all crimes except murder, attempted murder and treason involving the death of the sovereign. It is a complete defence and results in acquittal.
The defence is not available to a person charged with murder as a principal or as an aider, abettor, counsellor or procurer. It is, however, available on a charge of conspiracy to murder.
Once sufficient evidence has been raised for the defence to be considered, the burden of proof is on the prosecution to prove beyond a reasonable doubt the defendant was not acting under duress.
The CPS guidance on duress notes that there is no definitive statement of the scope of the common law defence of duress in relation to the level of threat required. However, a distillation of various authorities has led to the Court of Appeal, in R v Graham [1982] 1 WLR 294, posing the following questions in relation to duress:
- Was the Defendant impelled to act because, as a result of what he reasonably believed the coercer had said or done, he had a good cause to fear death or serious injury?
- Have the prosecution proven that a sober person of reasonable firmness, sharing the Defendant’s characteristics, would not have responded in the same way?
[There is a separate statutory defence contained in s.45 Modern Slavery Act (MSA) 2015 for victims of slavery or trafficking who commit an offence.]
- ‘To fear death or serious injury’ = threats of death or grievous physical bodily harm
In R v Quayle [2005] 1 All ER 988, it was held that “an imminent danger of physical injury” was required.
A threat of serious psychological injury will not suffice: R v Baker [1997] Crim LR. 497.
The threat may relate to the defendant or a member of his immediate family or alternatively to a person for whose safety the defendant would reasonably regard himself as responsible: R v Wright [2000] Crim. L.R. 510, CA.
- ‘Reasonable belief’ = objective element
This must be objectively reasonable as well as subjectively genuinely held: R v Hasan [2005] 2 AC 467.
- ‘Sharing the D’s characteristics’: recognized mental illness may be relevant
Age and sex are relevant.
Low IQ and suggestibility/susceptibility to pressure are not relevant characteristics, unless they are a result of a recognized psychiatric condition: R v Bowen [1996] 4 ALL ER 837.
The type of psychiatric evidence that may be relevant was indicated in R v Emery (1993) 14 Cr.App.R. in relation to Battered Woman Syndrome:
“The evidence should have gone no further than allowing for the doctors to give an expert account of the causes of the condition of dependent helplessness, the circumstances in which it might arise, and what level of abuse would be required to produce it’ what degree of isolation of the person in question one would expect to find before it appeared and what sort of personality factors might be involved.”
- Foreseeability of duress by association with antisocial peers is a reasonable person test: R v Hasan [2005] 2 WLR 709
Hasan was charged with aggravated burglary. He as associated with a violent drug dealer and claimed he was coerced into the robbery for fear of his family being harmed. The court held that the defence of duress was unavailable to him, and noted the following:
“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.”
This overrode previous case law of R v Baker and Ward, which held that there must be foresight of coercion to commit crimes of the kind with which the defendant is charged.
- Domestic violence with subsequent ‘Battered Woman Syndrome’ may be accepted
In R v Bowen (1994), Lord Justice Stuart-Smith identified “PTSD leading to learned helplessness” as a psychiatric condition that may result in a greater susceptibility to pressure and threats. It was deemed appropriate for psychiatric evidence to be admissible to assist the jury in deciding whether a reasonable person suffering from such a condition might have been impelled to act as the defendant did.
In this judgement, Lord Justice Stuart-Smith referred to R v Emery (1993). Miss Emery was convicted of failure to protect her child from its father, resulting in the death of the child. She claimed because of her fear of the father she had lost her capacity to act independently of him. At the appeal, Lord Taylor outlined the role of medical experts in the relationship between domestic violence and duress. It was accepted PTSD resulting from prolonged serious violence and abuse, also termed “learned helplessness”, included an inability to resist or stand up to the abuser coupled with a dependence on the abuser which made the victim unable to seek help.
In the case of R v Coats [2013] EWCA Crim 1472, Lady Justice Hallett accepted Battered Woman Syndrome (BWS) as a variant of PTSD. The focus was on two key features of BWS, namely learned helplessness and traumatic bonding.
“Learned helplessness would be of particular relevance to a possible defence of duress. The term is used to describe the reaction of a victim to chronic and repeated abuse, whereby they feel that whatever they do nothing will change. They have no way of physically or emotionally breaking free from their abuser and the abuse. They cannot extricate themselves from the violent situation no matter how many cries for help they may make. They become increasingly passive.”
Lady Justice Hallett identified two issues for the court to address in relation to the appellant’s defence of duress. First, whether the appellant may have been suffering from BWS at the time of the offence and second, if so, was it a severity and degree that might have afforded her the defence of duress. It was noted the accused would have to have been suffering from BWS in a severe form to be in a position to claim their will was overborne.
“Not every woman who suffers from BWS can claim the defence of duress. It is essential to analyse, with some care, the extent and timing of the domestic violence, the impact upon the person concerned and their presentation at the relevant time.”
In the case of Ms Coats, Lady Justice Hallett felt she shared virtually none of the characteristics that one would expect to see in a diagnosis of BWS and the conviction was upheld.
The Domestic Abuse Bill passing through Parliament considered a statutory defence for women whose offending is driven by their experience of domestic abuse, as recommended by the Prison Reform Trust. However, they considered it to be unnecessary. They believed the new statutory definition of domestic abuse in the Bill will mean existing defences are more able to respond flexibly and proportionately to the circumstances of those compelled to commit crimes as a result of domestic abuse. The use of existing defences is to be monitored and the need for statutory changes kept under review.