Is duress available for all offences?
The defence of duress as a complete defence in favour of those who are alleged to have committed a crime where they are forced or compelled to commit it by other circumstances or threats by another. It is available to every crime except for Murder so it really ought to be understood properly.
How can you establish duress?
This is a two part test and there is a subjective and objective limb. The subjective test can be worded like this “Was the defendant compelled to act as they did as a result of what they honestly believed and was their life in immediate danger or immediate risk of serious harm?”
The objective test is only asked if the subjective limb has been cleared – It can be phrased “Would a sober person of reasonable mind, sharing the same characteristics of the defendant, have responded in the same way?”
The above underlined part at first blush seems quite quirky – What does it mean? The leading case is Bowen (1996) and that lists the leading characteristics as being age, sex, physical disability, pregnancy, and a recognised mental illness or psychiatric condition. A trait such as having a low IQ, being suggestible or vulnerable are not taken into account nor is self induced intoxication through drink or drugs.
How is the test for duress applied in practice?
The usual question of how immediate was the threat is often posed, and it’s generally agreed that the threat must have been sufficiently great and compelling as to override the ordinary powers of human resistance.
Could you have sought police protection? This is the next logical hurdle that must be cleared and the jury must consider the defendant’s age and circumstances.
The defence of Duress is not available if the crime relates to a gang that the defendant voluntarily joined.
Like most defences it is important to understand and also important to mention it as early as you can if you seek to rely upon it. That being said, it is one of the most difficult defences to rely upon.
Bryan McMahon – Partner – Burton Copeland