‘The evil must be directed towards D or a person or persons for whom he has responsibility or persons for whom the situation makes him responsible.’ Threats made against D or threats made against other people will also support the defence of duress. In Shayler, Lord Woolf said that the persons for whom D is responsible ‘may not be ascertained and may not be identifiable’ However he also said ‘ If it is not possible to describe the individuals beforehand it has at least to be possible to describe the individuals by reference to this action which is threatened… thus if the threat is to explode a bomb in a building if D does not accede to what is demanded D owed responsibility to those who would be in the building if the bomb exploded.’
‘D’s act must be reasonable and proportionate to the evil avoided.’ Lord Woolf approved what had been said in Re A (2000). The final requirement has two elements : The act done should be no more that is reasonably necessary to avoid the harm feared; The harm resulting from the act should not be disproportionate to the harm avoided.
The threat must be one that the ordinary man would not have resisted. In Graham 1982 a duress case where D claimed he had been threatened by another man called King into killing D’s wife. Lord Lane CJ said : ‘The correct approach is as follows:
Was D or may he have been impelled to act as he did because as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or cause him serious injury. This is the subjective question.
If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristic of D would not have responded to whatever he reasonably believed King said or did by taking part in the killing ? The fact that D’s will to resist has been eroded by the voluntary consumption of drink or drugs or both is not relevant to this test. This is the objective question that must be applied by the Jury.
The first question is whether D was or might have been impelled to act as he did because as a result of his reasonable belief he had good cause to fear that if he did not act, he (or some other person for whom he was responsible) would die or suffer serious physical or mental injury. This test concentrates on D’s belief. If D unreasonably believed that he was being threatened and committed an offence, the defence is unavailable. D’s belief must have given him ‘good cause’ to fear death/serious injury, the defence will then fail if viewed objectively, i.e. in the opinion of the jury, death or serious injury was unlikely.
Arguably the test is too strict, there is a good case for saying that the first question should be purely subjective, that is, D should simply be judged on the basis of what he actually believed and what he actually feared. It would appear lack of faith in the jury to detect bogus defences lies at the root of the objective question.
The second question is whether a sober person of reasonable firmness but sharing D’s characteristics would have responded to whatever it was that D reasonably believed would happen to him by committing a criminal offence. In Bowen 1996 the Court of Appeal stated that the following characteristics were obviously relevant :
A young person may not be as honest as a mature one; pregnancy where there was an added fear for the unborn child; serious physical disability as that might inhibit self protection; recognised mental illness or psychiatric condition.
Finally sex might be relevant although the Court of Appeal though that many women might consider that they had as much moral courage to resist pressure as men, women might feel more threatened. In Bowen the COA held that self-imposed characteristics caused by the abuse of alcohol, drugs or sniffing glue, could not be relevant. This is consistent with the earlier case of flat 1986. This seems a fair balance when considering the threats made.
Duress is based upon excusing the accused’s commission of a crime as a ‘concession to a human frailty’ when confronted with a physical threat to do this or else.
Is it realistic to expect an accused to have the courage to sacrifice their own life or that of a loved one rather than participate in a murder simply by driving a murderer to the scene of an intended killing ? Can you justify this limitation on the basis of ‘the lesser of two evils’ or are there wider public policy considerations which require the defence to be unavailable ?
Is it fair to convict anybody for failing to demonstrate heroic qualities in such a situation ? If not, how else might human frailty be considered ?
Can you think of a ‘fair and certain basis on which to differentiate between participants in a murder’, who were threatened with their children’s deaths unless they gave some purely mechanical assistance such as providing the victim’s address and the person who actually carried out the killing ?
There are strong moral argument for excusing a person who has acted in a criminal manner in order to avoid a greater evil from occurring and it would seem to be a harsh system of criminal justice that would deny such a person a defence in such circumstances.