Duress and Necessity 2022

Duress by Threats

What kind of threat?

DPP for Northern Ireland v Lynch [1975] AC 653, HL: The type of threat which affords a defence must
be one of human physical harm (including possibly imprisonment) so that threat…to property is not
enough. (Lord Simon)

HL in Hasan [2005] UKHL 22, CA in Quale [2005] EWCA Crim 1415 confirms only physical harm will do
in case of duress. See Dao [2012] EWCA Crim 1717, false imprisonment would be insufficient
(obiter). Not settled, then, but unlikely to be thought sufficient by the courts. It is very likely that a
threat of rape would be considered ‘physical harm’ for duress purposes, but this is not settled.

Must the threat be the sole cause of D causing the crime?

Trial judges in cases involving cocaine smuggling from Columbia took to ruling that it must. Two
cases then went on appeal to the Court of Appeal.

Valderrama -Vega [1985] Crim LR 220 (CA)

D was threatened with violence and death. But also threatened with financial loss and exposure of
his sexuality

Ortiz (1986) 83 Cr App R 173 CA

Again, D threatened with violence and death. Also ‘threat’ of loss of large amounts of money and

Chelsea flat.

The Court of Appeal in Valderrama -Vega [1985] Crim LR 220 (CA): if D would not have acted as he
did but for threat of serious violence/death defence can be put to the jury.

Therefore: If there is a legally relevant threat, it need not be the sole threat at work

To whom must the threat be made?

To D herself/himself, to D’s immediate family or someone close to D or to someone D reasonably

A nominated crime?

Cole [1994] Crim LR 582 (CA)

D robs two building societies to pay money lenders. Duressor had simply menacingly demanded
money by a certain time without specifying how D was to get hold of it.

Simon Brown LJ: “Defence of duress by threats can only apply when the offence the accused asserts
he was constrained to commit…is the very offence that was nominated by the person making the
threat…”

So, Cole seems to be authority for the proposition that duress by threats requires a crime nominated
by the threatener. (But see the other form of duress– duress by circumstances). And Cole should
now be read in the light of the HL in Hasan [2005] UKHL 22. Simon Brown LJ in Cole also stressed the

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lack of imminence of the threat...and it is this that Lord Bingham stresses in Hasan: if the threat is
not to be executed until the next day or next week the threat is insufficiently imminent.

How immediate/imminent must the threat be?

Hudson and Taylor [1971] 2 ALL ER 244. Defendants appealed against their conviction for perjury.
Duressor sat in the public gallery as they gave their untruthful evidence.

Lord Widgery allowing the appeal: ‘It’s essential to the defence..that the threat shall be effective at
the moment when the crime is committed. The threat must be a “present” threat in the sense that
it is effective to neutralise the will of the accused at that time. Although the threats could not be
executed in the courtroom, they could be carried out in the streets of Salford that same night.’

Lord Bingham in the HL in Hasan [2005] UKHL 22 adds: There must have been no evasive action D
could reasonably have taken. So could Hudson & Taylor not have got police protection? Lord
Widgery considered the question relevant, but concluded still must have regard for what one can
reasonably expect the police to do. Lord Bingham in Hasan: approach in H & T to immediacy
requirement ‘too lax’– threat must be immediate or almost immediate. Conduct sought to be
excused must have been directly caused by threats D relied on.

But cf Baroness Hale (dissenting) In Hasan [2005] UKHL 22: “Majority overly concerned with denying
defence to criminals and associates; Insufficiently sensitive to dilemmas of innocent, vulnerable
people caught up in crime.”

Can D rely on a threat that he had ‘courted’?

Lord Bingham in Hasan [2005] UKHL 22. D cannot rely on threats to which s/he has voluntarily laid
her/ himself open. Sharp [1987] QB 853 (CA) quit gang of robbers, could not claim duress, knowing
they were violent.

Criteria in Sharp [1987] QB 853 (CA)

1. Did D join organisation/gang voluntarily?

In Shepherd (1988) 86 Cr App R 47 (CA) Sharp criteria are applied in favour of D, who joined a
shoplifting gang not knowing they would turn violent. Appeal allowed. Lord Mustill:‘There are
certain kinds of criminal enterprises’ which wouldn’t lead another to expect [violence]; here maybe
some concession appropriate’

Mistaken Duress

Graham (1982) 74 Cr App R 235; [1982] 1 All ER 801 (CA): reasonable mistake as to facts required.
This was cast temporarily in doubt by Martin (David Paul) (2000) 2 Cr App R 42 (CA), which
suggested duress rule is subjective: honest mistake enough. (After all, this would bring duress in line
with law of honest mistake in self-defence etc—Gladstone Williams—should not same subjective
rule apply in duress and necessity?

HL in Hasan [2005] UKHL 22 affirms Graham. Martin rejected.

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What sort of response to threats does the criminal law require?

The CA in Graham (1982) 74 Cr App R 235; [1982] 1 All ER 801 (CA):

The D must act as a sober person of reasonable firmness would have acted in those circumstances. D
must manifest ‘the steadfastness reasonably to be expected of ordinary citizens in his situation’.

The reasonable person with what characteristics?

Low IQ short of mental impairment irrelevant. In Bowen decided a characteristic is only relevant
where it places D in a category of people who are less able to resist threats:

 Age
 Serious Physical Disability
 Recognized mental illness/psychiatric condition, such as post-traumatic stress disorder
leading to learned helplessness. See also: Emery (1992) 14 Cr App R 394
 Sex ‘though many women would..consider they had as much moral courage to resist
pressure as men…’ Question: should this be on the list?
 Pregnancy

Also, Flatt [1996] Crim LR 576 (CA). Drug addiction because self-induced irrelevant.

Duress: the murder exception

Howe and Bannister [1986] UKHL 4 (HL)

Lord Hailsham:

‘I do not at all accept in relation to the defence of murder it is either good morals, good policy or
good law to suggest…that the ordinary man of reasonable fortitude is not to be supposed capable of
heroism if he is asked to take an innocent life rather than sacrifice his own. [To take this option
would be to] ‘..cast the cloak of…protection upon the coward and the poltroon in the name of a
‘concession to human frailty.[It would not be just or humane to] withdraw ‘the protection of the
criminal law from the innocent victim.’

Not available in attempted murder either: Gotts [1992] 2 AC 412 (HL)

But is available in conspiracy to murder: Ness [2011] Crim LR 645

Smith and Hogan argue: ‘The way to avoid the illogicality of the distinctions between murder,
attempt and conspiracy is to allow the duress defence to be pleaded to any of them.’

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Necessity

For decades, even centuries, a reluctance to develop a defence of necessity based on a lesser of two
evils.

London Borough of Southwark v Williams [1971] 2 All.E.R 175 at 179 (CA)

Could homeless defendants rely on necessity to justify law breaking? Lord Denning’s
emphatic negative answer:

Lord Denning: “If homelessness were once admitted as a defence to trespass, no-one’s
house could be safe. Necessity would open a door which no man could shut…The plea
would excuse all sorts of wrongdoing. So the courts must for the sake of law and order take
a stand. They must refuse to admit the plea of necessity to the hungry and the homeless;
and trust their distress will be relieved by the charitable and the good.”

But in the same case, Edmund-Davies LJ does not go so far– necessity could potentially
apply, but not in the current case since the squatters were not in ‘an urgent situation of
imminent peril.'

Lord Goff affirms the defence exists in the House of Lords :

F v West Berkshire Health Authority [1990] 2 AC 1, [1991] UKHL 1

“It has been long accepted in the common law that there is a defence of (i) public necessity;
(ii) private necessity (iii) Action taken out of necessity to assist another person without his
consent. For example: one person pulls another out of the way of a vehicle when there is no
time to obtain the consent of the other. Doctors justified in carrying out a sterilisation
operation upon a woman incapable of giving informed consent because of her mental
disorder. Lord Goff argued on basis of necessity: grave risk of her becoming pregnant, which
would have disturbing impact upon her.

Does necessity require emergency? Lord Goff: ‘Emergency, however, is not the criterion or
even a prerequisite; it is simply a frequent origin of the necessity which impels intervention.
The principle is one of necessity, not of emergency.

In many cases the potential role for any necessity defence is avoided because the defence is built in
to primary legislation.

For example: Exemption of fire brigade, ambulance and police vehicles from speed limits:

Road Traffic Regulation Act 1984

No statutory provision imposing a speed limit on motor vehicles shall apply to any vehicle on
an occasion when it is being used …. for ambulance purposes or police purposes, if the
observance of that provision would be likely to hinder the use of the vehicle for the purpose
for which it is being used on that occasion.

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 Another example: smashing a car window to save a dog in a parked car during a heatwave.

This is most likely covered under the Criminal Damage Act 1971, s.5(2)

D will have an excuse:

(a) if at the time of the act or acts alleged to constitute the offence he believed that the
person or persons whom he believed to be entitled to consent to the destruction of or
damage to the property in question had so consented, or would have so consented to it if he
or they had known of the destruction or damage and its circumstances; or

(b) if he destroyed or damaged …the property in question …in order to protect property
belonging to himself or another or a right or interest in property which was or which he
believed to be vested in himself or another, and at the time of the act or acts alleged to
constitute the offence he believed-

(i) that the property, right or interest was in immediate need of protection ; and

(ii) (ii) that the means of protection adopted or proposed to be adopted were or would
be reasonable having regard to all the circumstances.

Necessity as a Defence to Murder?

Dudley and Stephens (1884) 14 QBD 273 (DC)

Adrift on the ocean; around 1000 miles from land; 8 days without food; 6 days without
water; Parker very ill from drinking sea water.

Dudley, with the assent of Stephens, but without that of Parker himself, killed Parker with
knife. Both D and S fed on his flesh for four days. Dudley’s original idea to draw lots (not
carried out).

Held: Lord Coleridge: A man who, in order to escape death from hunger, kills another for the
purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such
circumstances that he believes and has reasonable ground for believing that it affords the
only chance of preserving his life.

D and S convicted of murder; sentenced to death. But death sentence not carried out:
commuted to six months imprisonment.

Lord Coleridge:

Who is to be the judge of this sort of necessity? By what measure is the comparative value of
lives to be measured? Is it to be strength or intellect or what? It is plain the principle leaves
to him who is to profit by it to determine the necessity which will…justify him in deliberately
taking another’s life to save his own. In this case the weakest, the youngest, the most
unresisting was chosen. Was it more necessary to kill him than one of the grown men? The
answer must be ‘No’.

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Sir Anthony Kenny comments:

“The decision in D and S can be justified by the narrower principle that one should not take
innocent life to save one’s own life. This principle seems to me, as did to Lord Coleridge in
1884, to be correct: it seems likely to reduce the overall number of innocent deaths.
Certainly I would rather be in an open boat with companions who accepted the principle
than in company with lawyers who accepted necessity as a defence to murder.”

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Duress of Circumstances and Necessity & Murder (concluded)

Distinguish duress by threats (‘do this [offence] or else’) from duress of circumstances (The threat is
from the [dangerous] circumstances.

Duress of Circumstances

Conway [1988] EWCA Crim 1.

D convicted of reckless driving. T, D’s passenger, had been the target of an attack on another
car a few weeks earlier when another man was shot and T narrowly got away. When two
men approached the car, T shouted to D to drive off, which D did—dangerously so. The two
men were in fact plain-clothes police officers.

CA quash conviction:

‘Whether duress of circumstances is called duress or necessity does not matter. What is
important is that, whatever it is called, it is subject to the same limitations as the ‘do this or
else’ species of duress.’

Martin (Colin) (1988) EWCA Crim 2 (CA).

D drove son to work knowing he (D) was disqualified. D’s wife (suffering from a form of
mental disorder) threatened suicide if he did not. Appeal upheld. But could this not have
been duress by threats?

Pommel [1995] 2 Cr App R (CA)

Charge: possession of prohibited weapon, a loaded sub-machine gun. D said ‘I took it off a
geezer who was going to do some people some damage with it.’

Kennedy LJ: “The strength of the argument that a person ought to be permitted to breach
the letter of the criminal law in order to prevent a greater evil befalling himself or others has
long been recognized (for example in Stephen’s Digest of Criminal Law), but it has, in English
law, not given rise to a generalised defence of necessity, and in relation to the charge of
murder, the defence has been specifically held not to exist (Dudley and Stephens). Even in
relation to other offences, there are powerful arguments against recognizing the general
defence. A limited defence of duress of circumstances developed in English law in relation
to road traffic offences…now extended.”

Kennedy LJ continued: Beyond need for a threat from a duressor: test said to be the same as
in duress by threats. Was D compelled to act because of the circumstances as reasonably
believed them to be? Did D have good reason to believe that the circs threatened life or
serious injury? Did D act as a sober person of reasonable firmness would have acted in those
circs?

Again: does not apply to murder/attempted murder

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Necessity and Murder concluded

Re A (Children) [2000] EWCA Civ 254 (CA, Civil Division)

Would it be lawful (not murder) for surgeons to separate two conjoined twins with the aim of saving
the life of the stronger twin in the knowledge that the weaker twin would die as a result?

Held: separation would be lawful. Among other reason given it was said to be necessary

Could the decision rest on self-defence/defence of others?

Ward LJ thought this. Mary, though innocent, was ‘killing’ Jodie he argued.

Could the decision be based on necessity?

Brooke LJ: yes. Necessity required demonstration of three circumstances, (as formulated by Sir
James Fitzjames Stephen in 1887):

1. The act is needed to avoid inevitable and irreparable evil.

2. No more should be done than is reasonably necessary for the purpose to be achieved.

3. The evil inflicted must not be disproportionate to the evil avoided.

Ward LJ also supported necessity as a defence, but in more limited circumstances:

1. Must be…impossible to preserve life of X without bringing about death of Y;

2. Y by… continued existence will inevitably bring about death of X within a short period of
time;

3. X is, Y is not, capable of viable independent life (Y incapable even with all forms of medical
intervention)

So, in Re A, necessity appears to have operated as a defence to murder. But there is clear
nervousness in the courts about this.

The Supreme Court in R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38 agreed
with the CA’s assertion in the same case that Re A is ‘too slender a thread on which to hang such a
far-reaching development of the common law, [i.e. that necessity is a defence to murder].’

However, it is strongly arguable that Re A does break that ground even in a very limited fashion and
so attempts will continue to be made in the future to push the boundaries further.