It seems unreasonable to expect the ordinary person to behave like a hero when confronted with a threat of death or serious harm unless they agree to commit or to join in a crime. On the other hand public policy demands that some form of resi

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Kate Allen

‘It seems unreasonable to expect the ordinary person to behave like a hero when confronted with a threat of death or serious harm unless they agree to commit or to join in a crime. On the other hand public policy demands that some form of resistance to such a threat must be encouraged by our law.’

Consider whether the courts have successfully developed the defence of duress by threats in order to balance these apparently conflicting concerns.

There are three ingredients of duress, ‘The defendant’s act must be done only to prevent an act of greater evil.’ Lord Woolf referred to the Court of Appeal decision in Abdul Hussain (1999) where it was stated that ‘imminent peril of death or serious injury is an essential element. Lord Woolf agreed that this was correct although he added that the defence should be extended to include acts designed to protect a person’s mental as well as physical health from serious injury.

In Lynch (1975), Lord Simon said ‘the law must draw a line somewhere and… the law draw it between threats to property and threats to the person.’ A threat to damage or destroy property is insufficient. Threats to expose sexual immorality are also insufficient (Valderrrama – Vega 1985). However although there must be a threat of death or serious injury, that need not be the sole reason why D committed the offence with which he is charged.

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‘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… ...

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