Duress

Defence of Duress

If the accused’s action were caused by threats, the defence of duress may be available.  Duress may make the offence involuntary.

The threats must involve serious violence, serious injury or death. They may involve immediate death or personal violence so great as to overbear the ordinary powers of human resistance.

The manner in which the threat is conveyed is not circumscribed. In principle, there is no limitation on the potential threats that may qualify for duress.

The threats must be such that they would overbear the will of a reasonable person. It is not clear whether and to what extent the particular weakness of the individual accused may be considered.

As with any other defence, if it is raised by the defendant and proved on the balance of probabilities,  the prosecution must negate it to the standard of “beyond reasonable doubt”.

Nature of Threat

The threat must be immediate and relate to injury or death.  Threats to property or threats to expose a person to ridicule or defamation are insufficient.

The threat should be continuing. The person concerned must reasonably apprehend that the threat will be carried out, and he must be thereby induced to commit the crime.

The threat must be capable of being carried out within a short time. It is not enough that threatening circumstances may exist later or that there may be consequences in terms of retaliation in the very near future.

Overwhelming and Immediate

In order to be effective, duress must be overwhelming and immediate. Duress due to general circumstances, intimidation, and overbearing of the will do not suffice.

The threat must be one of immediate death or serious violence. It must be such that it overpowers the ordinary powers of human resistance. The threat can be to life or serious injury. Moral pressure is insufficient. Moral coercion is not sufficient. The defendant’s will must be overpowered at the time the crime is committed.

The threat must operate to cause the offence. An offence committed to raise money to pay off persons threatening the accused had been held insufficient.

The threat need not necessarily have been made immediately before the offence, provided that its effects are operative at the relevant time.

The threat must be imminent. It need not be immediate. The threat may exist even though it is not capable of immediate execution. If possible the person threatened should seek the protection of the parties.

Response of Accused

The accused should act reasonably in response to the threat. He or she must have a reasonable level of fortitude.  This threat must be such that a person of ordinary firmness would yield to it.

What an ordinary person with the accused’s characteristics reasonably believes in the circumstances is to be considered. An objective test should be applied, using a person of the same age, gender, and physical health as the accused.

The perspective of the person threatened is considered. His perceptions must be reasonable in the circumstances, and there must be no evasive action he could reasonably take.

Voluntary Earlier Submission

If a person voluntarily exposes himself to threats and dangerous situations, he may be denied the defence of duress.  Where a person is a member of a gang and participates out of fear of reprisal, he is unlikely to be able to avail of a defence of duress.

If a reasonable person is aware of the risk that such threats or compulsion may arise, the defence will not be available.  Otherwise, the defence of duress would turn into a charter for gang leaders and terrorists.

In a number of cases concerning membership in terrorist organisations, the courts have held that a person may not use the defence of duress where the threat emanates from the organisation concerned. Similar principles arise when a person joins a gang or criminal undertaking.

Escape

The accused must have no safe means of preventing the execution of the threat. The person threatened must cease to act when free from duress. He must not deliberately expose himself to the duress.If duress is insufficient to operate as a defence, it may operate by way of mitigating the sentence.

It must be shown that the accused will was overborne by the threats. When the threats cease, so does the duress.  A person may be obliged to take steps to cease the unlawful behaviour once the duress ceases. However, in many cases, it may be reasonable to wait a certain time.

The Irish courts held that if an individual has the opportunity to escape from duress but fails to do so, the defence may not be available.

Murder

Duress is not a defence at common law to a charge of murder, attempted murder or treason. Duress does not usually operate to negate mens rea or guilty mind. A person may be held to have acted intentionally, even if under the effects of duress.

The English courts have held that duress is not available as a defence to murder, attempted murder or some forms of treason.  The Irish courts have stated the defence of duress is not available in relation to murder.

In the famous 19th-century case, persons at sea cast adrift at sea killed one of their number to eat in defence of necessity was denied. This was the case even though it appeared that the others would die otherwise.

It may be a defence, even to a crime of murder, that what was done was done to save human life. The circumstances must be extreme. The defendant accused must have acted reasonably and proportionately in order to avoid the threat of death or serious injury.