Duress of Circumstances

Version 1 Page 3 3/17/2012

Duress of Circumstances

Key definitions

Circumstances: The threat comes from an external source rather than specifically from anyone individual.
Necessity: A defence in criminal law based on the D having to make a choice between a criminal act and other difficult situations, e.g. a life and death situation. This concept is the basis on which duress of circumstance as a defence is based.
Imminent: Likely to occur at any moment; impending.

Duress of circumstances differs from duress by threats in that in duress by threats the defendant claims he is forced to commit an offence, whereas in duress of circumstances the defendant believes he, or those with him (for example, in a car) would suffer death or serious injury if he did not escape by doing what he did. In this sense, it is a little like self- defence. Generally the threat comes from an outside source rather than a specific person, though this is not always the case.

Key points

1.D argues that he is forced to do criminal offence because of some surrounding circumstances.

3.Uses the Graham test as per duress of threats

3.Results in acquittal

In Martin (1989) Simon Brown J summarised the position as follows:

‘First ... duress ... can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances’.

Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions:

1 Was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result?

2 If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted.

If the answer to both those questions was ‘yes’, then the jury would acquit: the defence of necessity would have been established. This is the same as the Graham test in Duress of Threats.

The case of Martin (1989) involved a charge of driving whilst disqualified. His wife had suicidal tendencies and had attempted suicide on a number of occasions. Her son had overslept, was bound to be late for work, and was at risk of losing his job unless, so it was claimed, the defendant drove him to work. The defendant’s wife was distraught. She was shouting, screaming, banging her head against a wall and she was threatening suicide unless he drove the boy to work. The defence had a statement from a doctor which expressed the opinion that in view of her mental condition it is likely that Mrs Martin would have attempted suicide if her husband did not drive her son to work. The defendant believed that his wife would carry out that threat unless he did as she demanded. Despite his disqualification he therefore drove the boy to work. He was in fact stopped by the police within about a quarter of a mile of the house

From this case it can be seen that the test is very similar to that of duress by threats.

There are a number of elements to consider:

␣ The objective nature of the threat.

␣ Reasonable and proportionate action.

␣ The nature of the test.

␣ Limits to the defence.

The objective nature of the threat

The fact that the threat must be seen objectively means that this is the view that a reasonable man – in other words the jury – would take. This is the same as in the defence of duress by threats and therefore requires consideration of the same characteristics of the defendant as we considered in the previous topic and the case of Bowen (1996).

Reasonable and proportionate action

This acts to limit the circumstances in which the defence may be pleaded. This is not just proportionate action, but action that would only be taken given the very serious nature of the threats made. This can be seen in the case of Conway (1989), where the defendant, having been attacked by two men whilst he was in a vehicle a fortnight previously, saw two men approaching his car. He drove off recklessly as, he claimed, he feared another attack. In fact, the two men were plain clothes policeman about to arrest a passenger in his car. The jury would then have to consider whether his behaviour was proportionate.

The nature of the test

The test is exactly the same as the test for duress by threats (same as Graham test), with the obvious changes:

2 If so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?

An application of the test can be seen in the case of Rodger and Rose (1997). In that case, the defendants were serving terms of life imprisonment for murder. Their original tariff set by the trial judge, of 12 and 20 years respectively, had since been increased to 17 years and indeterminate respectively. They claimed they became angry and depressed and had begun to consider suicide. This, they claimed, prompted them to break out of prison. The defence was not allowed as the circumstances which caused the action were internal to themselves and not extraneous circumstances as in all the other cases.

Limits to the defence

The defence has the same limitations on it as duress by threats. This was specifically stated in the case of Pommell (1995), where the Court of Appeal made it clear that the defence was not just limited to driving offences. In that case, the police entered the defendant’s house at about 8.00am on 4 June 1993 to execute a search warrant. He was found lying in bed with a loaded gun in his right hand. He was asked if the gun was his and he replied, ‘I took it off a geezer who was going to do some people some damage with it’. In the same bedroom police officers found a bag containing ammunition. When interviewed he was asked to explain his possession of the gun, and he said:

‘Last night someone come round to see me, this guy by the name of Erroll, and he had it with him with the intention to go and shoot some people because they had killed his friend and he wanted to kill their girlfriends and relatives and kids, and I persuade him, I took it off him and told him that it’s not right to do that.’

The defendant went on to say that Erroll had called between 12.30am and 1.00am and, after he left, he took the gun upstairs and kept it from his girlfriend and took the bullets out of it. He then decided to wait until morning and decided to put the bullets back into it. He was lying in bed with the gun against his leg because, he said, he did not want his girlfriend to see it. He said that he was going to hand the gun to his brother so that he could hand it to the police because his brother gets on with the police and had handed in guns in the past.

The question then remains whether the jury would believe the story and excuse the defendant by finding him not guilty.

Activity

Willer 1986: D felt threatened in his car when surrounded by a gang of youths. D had to drive on the pavement to get away . He was charged with reckless driving. CA held jury should have been allowed to consider if D drove "under that form of compulsion, that is under duress"

Cairns 1999: D only needs to perceive threat of serious injury or death, even if no actual threat. V threw himself on D's bonnet & started shouting with his friend. D felt threatened and drove off with falling off and being seriously injured. It is sufficient for D to show that he acted as he did because he reasonably perceived a threat of serious injury or death. D is not required to prove that the threat was actual and real.