The defence of duress was abolished as a defence to murder by the House of Lords in the case of R v Howe (1987) and as a defence to attempted murder in the case of R v Gotts (1992). The impact of these decisions has raised arguments supporting one of two conflicting principles:
1. Duress as a defence is a concession to human weakness
2. The law should expect an ordinary person to act heroicly when threatened and be prepared to sacrifice his own life as opposed to taking an innocent life.
The Law Commission (1992) and (1993) proposed that the defence of duress of circumstances be available to all crimes including murder. The Draft Criminal Law Bill, 1993, (Law Com. No. 218), clause 26 provides:
"(1) No act of a person constitutes an offence if the act is done under duress of circumstances.
(2) A person does an act under duress of circumstances if- (a) he does it because he knows or believes that it is immediately necessary to avoid death or serious injury to himself or another, and (b) the danger that he knows or believes to exist is such that in all the circumstances (including any of his personal characteristics that affect its gravity) he cannot reasonably be expected to act otherwise. It is for the defendant to show that the reason for his act was such knowledge or belief as is mentioned in paragraph (a)."
The defence would not apply to a person who knowingly and without reasonable excuse exposed himself to the danger known or believed to exist; the accused would have the burden of proving that he had not so exposed himself if the question arose.
Duress is a well-established defence - where the accused is threatened with serious violence unless s/he commits a crime, then generally this amounts to a total defence and the defendant is entitled to be acquitted. It is a full defence - in Hudson and Taylor (1971), the accused were two girls who committed perjury, having been threatened to be 'cut up' if they did not do so. The convictions were quashed on the grounds that the defence of duress should have been left to the jury.
The defendant obviously has the mens rea to commit the offence and is also treated as acting voluntarily. Duress then is a true defence where the accused is raising issues over and above the elements of the offence itself which excuse the offence.
From the position of moral retribution, faced with the choice of two evils, the accused is not to be blamed for choosing to break the law - s/he is less morally blameworthy that a person who exercises free choice.
Equally from the position of deterrence, if a person of reasonable strength of character would not have resisted these threats, then it is difficult to see that punishing this defendant would deter anyone else or encourage resistance(?). However it can be argued that this 'concession to human frailty' should not be regarded as a defence but as a factor in mitigation of sentence - after all provocation operates in this way in relation to all crimes except murder.
Bibliography:
Michael Molan - "Sourcebook on Criminal Law", 2nd Edition, (2001) - London: Cavendish Publishing Ltd.
Richard Card - "Criminal Law", 15th Edition, (2001) - London: Butterworths
Russell Heaton - "LLB Cases & Materials, Criminal Law", 2nd Edition, (1998) - London: Blackstone Press Ltd
Ashworth A - "Principals of Criminal Law", 3rd Edition. OUP
Smith and Hogan - "Criminal Law", 9th Edition, (1999), London: Butterworths
Elliot - "Necessity, Duress and Self-Defence", (1989), C.L.R. 611
Buchanan & Virgo "Duress and Mental Abnormality", (1999), C.L.R. 517
The Law Commission - www.lawcom.go.uk
