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Industry Insights

Unpacking and Understanding Duress

By 27 June 2024July 12th, 2024No Comments3 min read

We at Murray Hughman think it is really important to give people practical insights into criminal law in case you, or someone you know is affected by it.

In that vein, something that could affect anyone, is duress. You have probably heard the term before. This is where someone commits an offence because someone is threatening to harm them if they do not do it. This can be used as a defence to most crimes, even very serious ones. You cannot use it as a defence to the crimes of attempted murder, murder and treason (involving the death of a sovereign), although a defence of duress may be available in relation to the offence of conspiracy to murder.

The degree of the threat required to make this defence available is very high. It is not enough to simply believe that a person   will damage your property or slap you in the face. The threat must be so serious that  you must reasonably be in fear of death or serious injury. Not only this, but If the Prosecution can prove that a sober person of reasonable firmness, sharing the same characteristics, would not have responded in the same way, then the defence will not succeed.

The complications do not stop there. There must be a close connection between the crime committed and the threats made. In other words, the person must be threatened that if they do not carry out the crime, serious injury or death will ensue. If a person commits a crime to evade an unrelated threat, the defence cannot be used. An example of this would be if a person steals a microwave because they broke that of their neighbour and they think that they will attack them if they do not replace it. If the owner of the microwave did not directly threaten them to commit the crime, they cannot use the defence.

The threat must also be an imminent one. You must believe that if you do not comply with the coercer, very little time will elapse before they make good on their threat. There must therefore be an immediacy between the threats being made and the crime being committed for a defence of duress to succeed. If it can be shown that you had enough time to avoid the threat and/or notify the police and seek protection to avoid committing the crime you are unlikely to be able to successfully use this defence. There is lots of case law that surrounds this defence, but this gives you an overview.