R v Ness [2011] Crim LR 645

Facts

  • Ness, the appellant, was convicted of conspiracy to murder.
  • He claimed his involvement in the conspiracy was coerced by threats from a third party.
  • The trial judge directed the jury that duress was not available as a defence to conspiracy to murder.
  • Ness appealed, and the Court of Appeal examined whether duress could ever apply to such a charge.

Issues

  1. Whether the defence of duress is available in cases of conspiracy to murder.
  2. If so, what are the legal limitations governing the application of duress in conspiracy offences?

Decision

  • The Court of Appeal held that duress can in principle be a defence to conspiracy to murder.
  • The trial judge’s direction that duress was not available was incorrect.
  • The Court distinguished conspiracy to murder from the substantive offence of murder, noting that duress remains unavailable for the latter.
  • The essence of conspiracy is the agreement to commit an offence; if this is entered into under threats of death or serious injury, duress may negate the voluntariness required for conspiracy.
  • However, the availability of duress is subject to strict limitations, including the immediacy and unavoidability of the threat and the proportionality of the defendant's actions.

Legal Principles

  • Duress negates voluntariness, a necessary element in criminal offences where it applies.
  • For conspiracy, the critical issue is whether the agreement was free and voluntary; if it results from coercion by threats of death or serious harm, duress may provide a defence.
  • The defence of duress is not open to a charge of murder, following R v Howe [1987] AC 417, but may be available for conspiracy to murder given the different actus reus.
  • The threat must be immediate, unavoidable, and leave no reasonable opportunity to escape or seek protection.
  • The defendant bears the burden of establishing duress, and the jury must be satisfied on the evidence that the defence is made out.

Conclusion

R v Ness confirms that while duress is unavailable as a defence to murder, it may be considered in charges of conspiracy to murder if the strict requirements governing duress are met, with particular emphasis on the voluntariness of the agreement and the circumstances of coercion.

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