Free Law Dissertations - 1.an Overview Of The Defence Of Duress It Is Well Recognised That A
1.An Overview of the Defence of Duress
It is well recognised that a defendant may be excused if he has committed a crime (other than murder, attempted murder or treason) because he was threatened by someone that, if he did not do so, he or another person for whose safety he would reasonably regard himself as responsible would be killed or would suffer serious harm. Where duress is raised, the burden of proof is on the prosecution.
The scope of the defence is fairly clear. Although in the past there was some uncertainty as to the types of threat which would suffice, it now appears to be settled that the defence applies only where there were threats of death or grievous bodily harm. Furthermore, the defence is not available if the jury are sure that a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats.
In a series of decisions in the 1980s, the Court of Appeal recognised a related defence. In Willer, D had driven along a pavement to escape from a gang of youths who intended violence towards him and his passengers. The Court of Appeal held that the judge had been wrong in refusing to let the defence of compulsion go the jury and treated the case as one of duress. Clearly, the facts in this case did not raise the defence of the traditional type. The youths did not say to Willer drive recklessly or else we will beat up you and your passengers. The real nature of the defence was explained by the Court of Appeal two years later in the case of Conway. This case also concerned reckless driving. D has been urged by his passenger to drive off quickly to escape two youths running towards the car. D feared, apparently with good reason, that the two youths intended a fatal attack upon his passenger. The Court of Appeal held that it was bound by Willer to the effect that duress was available as a defence. However, it was stated that the defence was properly termed duress of circumstances a species of necessity analogous to duress in the traditional sense.
In Martin, D was charged and convicted of driving whilst disqualified. At his trial he put forward a plea of necessity asserting that his wife had threatened to commit suicide if he refused to drive their son to work. The trial judge decided that necessity was not a defence to the crime charged. On appeal, the Court of Appeal held that the defence of duress of circumstances should have been left to the jury. The Court of Appeal held that the ingredients of this defence were equivalent to those of duress by threats. That is, the defence is available if D has acted reasonably in order to avoid a threat of death or serious injury.
In DPP v Bell, the Divisional Court held that the defence was available where D had driven a motor vehicle with excess alcohol to escape a group of youths who were pursuing him.
In DPP v Hicks, the respondent was charged with driving with an alcohol concentration in excess of the prescribed limit.
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