Duress in English Law - Criminal Law

Criminal Law

This is an exception to the general principle of criminal law that those who choose to break the law are held responsible for the crimes that they commit. The rationale of the exception is that the choice is not wholly voluntary. The Law Commission (1977 at paras 2.44-2.46) recognised the logic that, if the defence was going to be allowed at all, it should be applied to all offences. But this recommendation has not been adopted because it is felt that, in the case of the most serious crimes such as murder, no threat to the defendant, however extreme, should excuse commission of the crime (Elliott; 1989). The defence is also open to abuse. Smith (1994 at p584) commented:

"...duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for the prosecution to investigate or subsequently to disprove."

This approach has been adopted by the judiciary, most notably by the House of Lords in R v H 2004 2WLR 335:

"Defences that the accused has been set up and allegations of duress, which used to at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care."

The prosecution's difficulty was at one time the greater when the issue of duress had not been raised by the defence until the trial was under way. To counter these problems, the Law Commission (1993 at paras 33-34) recommended that the burden of proof be shifted to the defendant to establish duress on the balance of probabilities. Since then there has been no specific enactment relating to duress but Section 5 of the Criminal Procedure and Investigations Act 1996, c.25, provides that the defence must serve on the Court and the prosecution the nature of the accused’s defence in general terms, and the matters in issue. This would seem to apply to the defence of duress, and in R v Tyrell and others 2004 EWCA Crim 3279, there had been a specific, although late, reliance upon the defence.

A rigorous analysis of the doctrine of duress is difficult because it is invariably reliant upon the particular facts in a given case, and there is usually an overlap between duress and the defence of necessity. See, for example, comments by Lord Woolf CJ in R v Shayler at Para. 42.