## Introduction

Duress in criminal law applies where a person offends because they are compelled by threats. It recognises that a serious and imminent threat may overbear an ordinary person’s will. The defence is tightly controlled: the threat must be of death or serious injury, the response must be reasonable, and there must be no safe route to avoid the crime. Courts apply a combined subjective/objective test and have set clear limits, including that duress is not available for murder or attempted murder.

This guide explains the elements, the two-stage test, common pitfalls, and the leading authorities you should know.

## What You’ll Learn

- The elements of duress by threats and duress of circumstances
- How the Graham/Hasan two-stage test works
- Which characteristics of the defendant are relevant (and which are not)
- When the defence is excluded: murder, attempted murder, voluntary association with criminals, and safe avenues of escape
- The need for a nexus between the threat and the offence
- How “imminent” differs from “immediate”
- How to structure problem answers and advise on evidence

## Core Concepts

### Duress by Threats: Core Requirements

To raise duress by threats, the defence must point to evidence of:

- Nature of the threat
  - Threat must be of death or serious injury. Threats to property or to expose embarrassing information will not suffice on their own (R v Valderrama-Vega [1985] Crim LR 220).
  - The threat can be directed at the defendant or someone for whose safety the defendant reasonably feels responsible (e.g., partner, child, close relative).

- Imminence
  - The threat must be effective at the time of the offence. It need not be immediate in a strict sense, but it must be hanging over the defendant and operative when they offend (R v Abdul-Hussain [1999] Crim LR 570).

- Causation (nexus)
  - The threat must cause the offence. There should be a direct link between the demand made and the crime committed. If the threatener did not specify the offence, the defence may fail (R v Cole [1994] Crim LR 582).

- No safe avenue of escape
  - If a reasonable person in the defendant’s position could have avoided the crime (e.g., by going to the police or safely withdrawing), the defence fails. This is assessed realistically, but courts expect attempts to seek protection where feasible.

- Availability across offences
  - Duress is available to most offences but not to murder (R v Howe [1987] AC 417) or attempted murder (R v Gotts [1992] 2 AC 412). It may also be excluded for certain forms of treason.

- Evidential and legal burden
  - The defendant bears an evidential burden to raise the issue. Once raised, the prosecution must disprove duress beyond reasonable doubt.

### The Graham/Hasan Test (Subjective and Objective)

Courts apply a two-stage assessment (from R v Graham [1982] 1 WLR 294, affirmed in R v Hasan [2005] UKHL 22):

1. Subjective question
   - Did the defendant reasonably believe they had good cause to fear death or serious injury if they did not commit the offence?
   - The belief must be genuinely held. Self-induced intoxication cannot be relied upon to found the belief.

2. Objective question
   - Would a sober person of reasonable firmness, sharing certain relevant characteristics of the defendant, have responded by committing the offence?
   - Relevant characteristics can include age, sex, pregnancy, serious physical disability, and recognised mental conditions that bear on the ability to resist threats.
   - Low intelligence alone is not relevant (R v Bowen [1997] 1 WLR 372).

Overall, duress excuses only where an ordinary person with the defendant’s relevant traits would have done the same.

### Duress of Circumstances and Necessity

- Duress of circumstances
  - The pressure comes from the situation rather than a human threat (e.g., driving dangerously to escape a sudden risk to life). The same two-stage test applies (R v Conway [1989] QB 290; R v Martin (DP) [1989] 1 All ER 652).

- Necessity
  - Often discussed alongside duress of circumstances. In practice, criminal courts treat most “necessity” arguments as duress of circumstances unless dealing with rare scenarios. The Court of Appeal in R v Shayler [2001] 1 WLR 2206 explained the overlap and endorsed the same core approach: immediate or imminent serious harm, a reasonable and proportionate response, and no lawful alternative.

### Key Limits and Exclusions

- Murder and attempted murder
  - Not available to either principals or accessories in murder (R v Howe), and not available to attempted murder (R v Gotts).

- Voluntary association with criminals
  - If the defendant voluntarily joined a criminal association knowing (or reasonably expecting) they might be pressured to commit crimes, the defence is generally barred. Foreseeability of coercion is key (R v Hasan).

- Opportunity to avoid the crime
  - A safe route out defeats the defence. Contacting the police is usually required if it can be done safely. Earlier case law treated police protection more generously (e.g., Hudson & Taylor [1971] 2 QB 202), but later authorities stress the need for real, imminent pressure at the time of the offence (see Hasan).

- Offence too remote from the threat
  - The crime must be a direct response to the threat. If the threatener did not demand that particular offence, or the crime goes beyond what is required, the defence may fail (Cole).

- Self-induced situations and intoxication
  - Self-induced intoxication cannot support the belief. Creating the situation in which threats arise (e.g., by joining a violent group) can bar the defence (Hasan).

## Key Examples or Case Studies

### R v Howe [1987] AC 417

- Facts: Defendants took part in killings under threat from a third party.
- Held: Duress is not a defence to murder, whether as principal or secondary party.
- Key point: The law refuses to excuse intentional killing even under severe coercion.

### R v Gotts [1992] 2 AC 412

- Facts: A youth attempted to kill his mother under threat from his father.
- Held: Duress is not available to attempted murder.
- Key point: The exclusion extends from murder to attempted murder.

### R v Hasan [2005] UKHL 22

- Facts: Defendant committed burglary under threats from a violent associate.
- Held: Confirmed the Graham two-stage test; emphasised immediacy/imminence, safe escape, and the voluntary association rule.
- Key point: If you voluntarily mix with violent criminals and foresee coercion, duress is generally barred.

### R v Bowen [1997] 1 WLR 372

- Facts: Defendant with a low IQ committed fraud under threats.
- Held: Only characteristics affecting the ability to resist threats are relevant (age, sex, pregnancy, serious physical disability, recognised psychiatric conditions). Low IQ alone is not.
- Key point: The “reasonable firmness” test uses limited, relevant characteristics.

### R v Abdul-Hussain [1999] Crim LR 570

- Facts: Defendants hijacked a plane to avoid deportation to a country where they feared execution.
- Held: The threat must be imminent, not necessarily immediate; it must be operating on the mind of the defendant at the time of the offence.
- Key point: Imminence is assessed realistically, but the threat must be pressing when the offence is committed.

### R v Cole [1994] Crim LR 582

- Facts: Defendant robbed banks while under threats to repay money but was not told to commit robbery.
- Held: Defence failed due to lack of a direct link between the threats and the specific offence.
- Key point: There must be a clear causal connection between the threat and the crime.

### R v Valderrama-Vega [1985] Crim LR 220

- Facts: Defendant imported drugs under multiple pressures, including threats of violence and threats to reveal personal information.
- Held: Threats of death or serious injury are required; other pressures can be considered only if such threats are also present.
- Key point: Financial or reputational pressure alone is not enough.

### R v Conway [1989] QB 290 and R v Martin (DP) [1989] 1 All ER 652

- Facts: Defendants drove unlawfully due to fear of serious harm to themselves or others.
- Held: Confirmed duress of circumstances; applied a test aligned with duress by threats.
- Key point: The same two-stage analysis governs both forms of duress.

## Practical Applications

- Use a structured approach in problem questions
  1. Identify the threat:
     - Was there a threat of death or serious injury?
     - To the defendant or someone they reasonably felt responsible for?
  2. Check imminence:
     - Was the threat operating at the time? Immediate protection from police unavailable?
  3. Test causation:
     - Was the offence directly demanded or clearly caused by the threat? (Cole)
  4. Assess safe avenues:
     - Could the defendant reasonably avoid offending (withdrawal, contacting police)?
  5. Apply the Graham/Hasan test:
     - Subjective belief: honest and reasonable fear of death or serious injury.
     - Objective response: would a sober person of reasonable firmness with relevant characteristics have acted similarly? (Bowen)
  6. Consider exclusions:
     - Murder or attempted murder? (Howe, Gotts)
     - Voluntary association with violent criminals? (Hasan)
     - Self-induced intoxication affecting belief?

- Evidential pointers for practice
  - Gather evidence of the threats: messages, recordings, witnesses, injuries.
  - Show why police protection was not a realistic option at the time.
  - Explain the timing to prove the threat was imminent rather than historical.
  - Demonstrate the link between the threat and the specific offence (e.g., demands, instructions).
  - Identify relevant characteristics supported by medical or expert evidence (e.g., recognised psychiatric condition).

- Common pitfalls to avoid
  - Relying on general fear rather than a specific threat of death or serious injury.
  - Failing to show a direct link between threat and offence.
  - Overlooking a safe route out or delay between threat and offence.
  - Overstating personal characteristics not accepted by law (e.g., low intelligence alone).

- Exam-ready framing (for essays or SQE-style questions)
  - State the rule: elements + two-stage test.
  - Apply facts to each element in order (threat, imminence, nexus, escape).
  - Address exclusions clearly (murder/attempted murder, voluntary association).
  - Conclude on whether the prosecution could disprove duress beyond reasonable doubt.

## Summary Checklist

- Threat must be of death or serious injury
- Threat may be to defendant or a person the defendant reasonably feels responsible for
- Threat must be imminent and operating at the time of the offence
- Direct link between the threat and the offence (nexus)
- No safe avenue of escape (including seeking police help where safe)
- Apply the Graham/Hasan two-stage test (subjective belief; objective “reasonable firmness” with limited relevant characteristics)
- Not available for murder or attempted murder
- Voluntary association with violent criminals can bar the defence
- Defendant raises an evidential issue; prosecution must disprove it beyond reasonable doubt

## Quick Reference

| Concept                         | Authority                  | Key takeaway                                                   |
| ------------------------------- | -------------------------- | -------------------------------------------------------------- |
| Duress not for murder           | R v Howe [1987] AC 417     | No defence to murder for principals or accessories             |
| Duress not for attempted murder | R v Gotts [1992] 2 AC 412  | Not available to attempted murder                              |
| Two-stage test                  | R v Graham; R v Hasan      | Subjective belief + objective “reasonable firmness”            |
| Relevant characteristics        | R v Bowen [1997] 1 WLR 372 | Age, sex, pregnancy, serious disability, recognised conditions |
| Imminent vs immediate           | R v Abdul-Hussain [1999]   | Threat must be imminent, not necessarily immediate             |
| Nexus to the offence            | R v Cole [1994]            | Threat must cause the specific offence                         |
| Duress of circumstances         | R v Conway; R v Martin     | Same test applies where pressure comes from circumstances      |
| Voluntary association bar       | R v Hasan [2005] UKHL 22   | Foreseeable coercion via criminal ties defeats the defence     |


Defence of Duress in Criminal Law