Duress of Circumstances in English Law
A Defence Against Liability for Crimes Committed to Save Lives
Nov 9, 2009
In August of 2009, Dr Sherif Abdel-Fattah was issued with a ticket after he was caught breaking the speed limit in a bid to reach a woman who was severely bleeding. If he had not acted as he did, it is possible that his patient could have died; which many would regard as a worse outcome than a doctor speeding.
Although the situation Dr Abdel-Fattah faced is thankfully a rare occurrence, the law in England and Wales recognises that sometimes committing a crime is the lesser of two evils. The law therefore recognises a defence known as duress of circumstances.
What is Duress?
Duress is, in essence, a defence against a criminal charge on the grounds that sufficient pressure was placed on the defendant that his or her free will was overcome. In effect it is an admission that the defendant may have performed the actus reus of the crime with the requisite mens rea but their state of mind was sufficiently clouded by the coercion of another that the mens rea aspect may be disregarded.
What is Duress of Circumstances?
In most cases, duress will be caused by another person or group of people but this is not always the case. As in Dr Abdel-Fattah's case, sometimes events seem to conspire in such a way that a person feels they are caught between a rock and a hard place: they must either commit a crime or suffer some terrible consequences that are not of their own making. In such a situation it is the circumstances as a whole that cause the duress, not any particular person or event.
When May Duress of Circumstances be Used?
According to the decision in R v. Conway [1988], duress of circumstances is only available if the defendant reasonably believed, at the time the offence was committed, that it was necessary to commit the criminal act in question “in order to avoid death or serious injury” to himself or another.
Are There Limits to Duress of Circumstances?
The threat does not need to be an immediate one; although it does need to be imminent. It is not sufficient to raise duress as a defence where the defendant was threatened with death “sometime this month”, for example, although R v. Abdul Hussain and Others [1999], where a group hijacked an aircraft in order to prevent their deaths by Iraqi authorities, demonstrates that an “imminent and operative” threat will be sufficient.
The Conway case was concerned with a driving offence only but in R v. Pommell (1995), the Court of Appeal extended the defence to all crimes except murder. As with standard duress claims, duress is only a defence where the defendant has either taken all reasonable steps to overcome the perceived threat, such as contacting the police where an opportunity to do so arose, or no such reasonable steps were possible.
Duress of circumstances exists as a defence for occasions where necessity requires that a crime be committed for the greater good. It is an extension of the principle of only prosecuting when to do so is in the public interest, as the spirit of the law will not be upheld where otherwise honest and decent people are convicted of crimes they could not help committing with good conscience or in the interests of self-preservation. The defence is limited in its application in order to stay within the limits of necessity, but where it is available, it may possibly fully acquit at the discretion of the Judge.
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