Duress by Threats (OCR A-Level Law): Revision Notes
Duress by Threats
What is duress by threats?
Duress by threats is a common law defence, meaning its rules have developed through judicial decisions rather than legislation. This defence applies when a defendant commits a crime because they were forced to do so by direct threats, typically aimed at the defendant themselves. The defendant does not deny committing the criminal act but argues they had no real choice due to the threat they faced.
The courts approach this defence with considerable caution. Judges are generally reluctant to accept that a defendant genuinely had no option but to commit a crime and could not have simply walked away or sought help from the authorities. As a result, duress by threats is rarely successful in practice.
Availability of the defence
The defence of duress by threats has significant limitations on when it can be used:
Crimes where duress is NOT available:
- Murder - R v Howe (1987)
- Attempted murder - R v Gotts (1992)
- Probably treason (though this remains uncertain)
Crimes where duress IS available:
- All other criminal offences
In R v Howe (1987), the House of Lords held that duress cannot be a defence to murder. The defendant had participated in torturing and killing a man, claiming he had been threatened into doing so. The court reasoned that one person's life is not worth more than another's, so killing an innocent person cannot be justified even under threat.
This principle was extended to attempted murder in R v Gotts (1992), where a 16-year-old defendant had been threatened by his father into stabbing his mother. The court ruled that the same reasoning applies whether the victim actually dies or not.
In R v A (2012), the Court of Appeal suggested (obiter) that rape could constitute a valid threat for the purposes of duress, though the evidence of such a threat was rejected in that case. This point remains persuasive but not binding authority.
The Graham test
The leading test for duress by threats comes from R v Graham (1982). To successfully use this defence, the defendant must satisfy both parts of this two-stage test:
Part 1: Subjective belief
Was the defendant compelled to act because they reasonably believed they had a good reason to fear death or serious injury?
This examines whether the defendant genuinely believed they faced such a threat, and whether that belief was reasonable in the circumstances.
Part 2: Objective standard
Would a sober person of reasonable firmness, sharing the same characteristics as the defendant, have acted in the same way?
This sets an objective standard to prevent the defence being too easily available. The hypothetical reasonable person shares certain characteristics with the defendant (discussed below) but must still show reasonable firmness in resisting the threat.
In R v Hasan (2005), the House of Lords clarified that the threat must be objectively reasonable and subjectively genuine. This means the defendant must actually believe in the threat (subjective), but that belief must also be one that a reasonable person would hold (objective).
Type of threat required
For duress by threats to apply, strict requirements govern what types of threat qualify:
Valid threats:
- Threat of death
- Threat of serious injury (equivalent to grievous bodily harm/GBH)
Invalid threats:
- Threat of serious psychological injury - Baker (1997)
- Threats of a lesser nature (e.g., damage to property, financial harm, exposure of secrets)
Multiple Threats: R v Valderrama-Vega (1985)
In this case, the defendant had imported cocaine after being threatened with death, financial ruin, and exposure of his sexuality. The court accepted that multiple threats can be considered together, provided at least one threat is of death or serious injury.
The key principle: All threats could be considered, but a threat of death or serious injury must be present among them.
Characteristics of the defendant
When applying the objective test (the reasonable person standard), certain characteristics of the defendant are relevant, while others are not:
Relevant characteristics:
- Age
- Gender
- Pregnancy
- Serious physical disability
- Recognised mental illness
Irrelevant characteristics:
- Low IQ - R v Bowen (1996)
- General timidity or weakness of character
The reasonable person is therefore someone of reasonable firmness who shares certain physical or mental characteristics with the defendant, but not simply someone with the same personality or intellectual capacity.
Who can be threatened
The threat does not have to be directed at the defendant personally. According to R v Wright (2000), valid threats for duress include threats made against:
- The defendant themselves
- A close family member of their immediate family
- People for whom the defendant would reasonably regard themselves as responsible
In Wright, the defendant was found with cocaine but claimed her boyfriend had been threatened. The court accepted that threats to a boyfriend could potentially support a duress defence, extending the category beyond just immediate family members.
Safe avenue of escape
If a safe avenue of escape is available to the defendant, they must pursue it rather than commit the crime. However, the law recognises that what appears safe in theory may not be safe in reality.
General rule: The defendant must take any safe opportunity to escape the threat - R v Gill (1963)
Exception: If the defendant reasonably believes there is no safe escape, even if objectively there was one, the defence may still apply - R v Hudson and Taylor (1971)
The Courtroom Exception: R v Hudson and Taylor (1971)
Two young women committed perjury after being threatened. Although they were in a courtroom surrounded by police protection, they reasonably believed the threat would still be carried out later.
The court accepted their defence, recognising that police protection is not always effective. This demonstrates that the question is whether the defendant reasonably believed there was no safe escape, not whether there objectively was one.
Similarly, in R v Batchelor (2013), the defendant claimed he had been threatened over a period of two and a half years. The court rejected his defence, noting that he had ample opportunity during this extended period to seek police protection. The threat was therefore not sufficiently immediate.
Imminence of the threat
The threat must be imminent or immediate when the crime is committed. The defendant cannot claim duress for threats that might materialise at some distant point in the future.
R v Quayle (2005) defined the requirement as "an imminent danger of physical injury".
R v Hasan (2005) reinforced that the threat must be, or be believed to be, immediate or almost immediate.
This requirement ensures that defendants cannot use past threats or vague future threats to justify committing crimes. The threat must be operative and pressing at the time of the criminal act.
Insufficient Immediacy: R v Brandford (2016)
The defendant was charged with conspiracy to sell class A drugs, arguing her boyfriend had been told by a third party that "something bad would happen to him" unless he transported drugs. She claimed she transported them instead to protect him.
The Court of Appeal rejected this defence because:
- The words were too vague
- They lacked immediacy
- She had ample time to go to the police
This case demonstrates that vague threats without clear immediacy will not suffice for duress.
Nexus (link) between threat and crime
There must be a nexus (connection or link) between the crime the defendant was threatened to commit and the crime they actually committed.
R v Cole (1994) established this requirement. The defendant robbed a building society to repay a debt after he and his family were threatened by money lenders.
The court rejected his duress defence because:
- He was not told to commit robbery
- He chose this method of obtaining money himself
- There was no direct link between the threat and the specific crime committed
The threat must be "do X crime or else," not just a general threat that pressures the defendant to find some way to respond.
Self-induced duress (voluntary association)
The defence will fail if the defendant voluntarily associated with people known to use violence or make threats, such as criminal gangs or terrorist organisations.
R v Sharp (1987) and R v Shepherd (1987) establish this principle. If a defendant joins or remains involved with criminals, knowing they use threats and violence, they cannot later claim duress when those same people threaten them.
This rule reflects the view that defendants who voluntarily place themselves in such situations have assumed the risk of being threatened and should not benefit from a defence based on those threats.
Key cases summary
The following table summarises all the key cases on duress by threats. Understanding the facts and legal principles from each case is essential for both problem questions and essays.
| Case | Facts | Legal principle |
|---|---|---|
| R v Graham (1982) | D lived with his wife and homosexual lover K. D helped K kill his wife, claiming he was frightened of K. | Established the two-part test for duress: (1) Did D reasonably believe they had good reason to fear death/serious injury? (2) Would a sober person of reasonable firmness with D's characteristics have acted the same way? |
| R v Howe (1987) | D participated in torturing and killing a man, claiming he had been threatened to do so. Later did the same while acting alone. | Duress is NOT available as a defence to murder. One person's life is not worth more than another's. Also established that the threat must be convincing enough that a person of reasonable firmness with D's characteristics would have given in. |
| R v Gotts (1992) | D, aged 16, was threatened by his father into stabbing his mother to death. | Duress is NOT available as a defence to attempted murder. |
| R v A (2012) | D claimed she had been threatened with rape to commit a crime. | Court of Appeal stated (obiter) that rape could be an acceptable threat, but the evidence of threat was rejected in this case. |
| Baker (1997) | Threat of serious psychological injury is NOT sufficient for duress. | |
| R v Bowen (1996) | Low IQ is NOT a relevant characteristic when assessing the reasonable person test. Age and gender are relevant. | |
| R v Valderrama-Vega (1985) | D imported cocaine after being threatened with exposure of his sexuality, death, and financial ruin. | Multiple threats can be considered together, but there MUST be a threat of death or serious injury among them. Other threats alone are insufficient. |
| R v Wright (2000) | D was arrested with cocaine but claimed she had it because her boyfriend had been threatened. | Threats can be made against people beyond the defendant's immediate family, including those for whom D would reasonably regard themselves as responsible. |
| R v Hasan (2005) | D associated with a violent drug dealer and was threatened into carrying out a burglary/robbery. | The threat must be, or be believed to be, immediate or almost immediate. The threat must be objectively reasonable and subjectively genuine. |
| R v Quayle (2005) | The threat must constitute "an imminent danger of physical injury". | |
| R v Cole (1994) | D robbed a building society to repay a debt after he and his family were threatened by money lenders. | There must be a NEXUS (link) between the crime threatened and the crime committed. D choosing his own criminal response to a threat is insufficient. |
| R v Gill (1963) | If there is a safe avenue of escape, the defendant must pursue it. | |
| R v Hudson and Taylor (1971) | Two young women committed perjury after being threatened, even though they were in a courtroom with police present. | Exception to safe avenue rule: if the defendant reasonably believes there is no safe escape (even if objectively there was), the defence may apply. |
| R v Batchelor (2013) | D claimed he had been threatened by armed men over a period of two and a half years to repay money allegedly owed. | Defendant must seek police protection if possible. Over such a long period, the threat was not sufficiently immediate or imminent. |
| R v Brandford (2016) | D charged with conspiracy to sell class A drugs. Claimed boyfriend threatened by third party that "something bad would happen to him" unless he transported drugs; she did so instead. | Indirect threats of violence/death can theoretically be valid, but must be sufficiently specific and immediate. Vague threats with ample time to contact police are insufficient. |
| R v Sharp (1987) | D associated with violent criminals. | Defence FAILS if defendant voluntarily associates with people known to make threats (e.g., criminal gangs). |
| R v Shepherd (1987) | D associated with violent criminals. | Confirms that voluntary association with violent criminals negates the duress defence. |
Exam guidance
When answering problem questions:
- Identify whether D is claiming duress by threats (direct threat) rather than duress of circumstances (general danger)
- Apply the Graham test methodically (both parts)
- Check the type of crime - remember duress is unavailable for murder/attempted murder
- Examine the nature of the threat - must be death or serious injury
- Consider D's characteristics - which are relevant?
- Identify who was threatened - does it fall within the permitted categories?
- Assess imminence - was the threat immediate or almost immediate?
- Check for nexus - was there a clear link between the threat and the crime committed?
- Consider safe avenue of escape - could D have reasonably escaped or sought help?
- Examine self-induced duress - did D voluntarily associate with criminals?
When answering essay questions:
- Evaluate whether each requirement is justified (e.g., should duress be unavailable for murder?)
- Consider whether the reasonable firmness test is too strict or too lenient
- Discuss the tension between subjective and objective elements
- Analyse whether the nexus requirement is too restrictive
- Evaluate the self-induced duress rule - is voluntary association a fair basis to deny the defence?
- Reference the Law Commission's proposals for reform where relevant
Remember!
Key Points to Remember:
- Duress by threats is a common law defence where D commits a crime due to direct threats, usually against D themselves.
- Not available for murder, attempted murder, or probably treason - all other crimes are covered.
- The Graham test has two parts: (1) Did D reasonably believe they faced death/serious injury? (2) Would a sober person of reasonable firmness with D's characteristics have acted the same way?
- Only threats of death or serious injury qualify - psychological injury or other threats are insufficient (unless combined with death/serious injury threats).
- The threat must be immediate or almost immediate - not some distant future possibility.
- There must be a nexus (link) between the crime threatened and the crime committed - D cannot choose their own criminal response.
- Voluntary association with criminals defeats the defence - if you knowingly join violent groups, you cannot later claim duress from their threats.
- Key characteristics matter: age, gender, pregnancy, disability, and mental illness are relevant; low IQ is not.