Reform of Duress and Necessity

“Summarise the provisions and recommendations of the Law Reform Commission in reform of the pleas of duress and necessity”

The Law Reform Commission (hereafter the LRC) in an effort to clarify the nature and scope of the defences to criminal charges produced a series of Consultation Papers on the pleas of provocation [1] , duress and necessity [2] , and legitimate defence [3] which culminated in the Law Reform Commission’s Report on Defences in Criminal Law [4] . Recommendations were made on both the defences of duress and necessity and these will be discussed in this essay.

Duress

This defence applies where the accused’s choice is constrained by threats to do an act which otherwise would be a crime. When the plea of duress is successfully invoked it affords the accused a complete defence.

Only one Irish case has examined the nature and scope of the plea of duress: Attorney General v. Whelan [5] . The defendant was charged with receiving a sum of stolen money. Another man, Farnan had brought a box of stolen coins to the defendant’s house late one night. The defendant had accepted the money but argued that he had done so under duress as Farnan was armed with a revolver. The trial judge noted that there was no doubt that Farnan was the type of person to threaten to use a revolver, if not actually use it. It was left to the jury to decide whether the defendant had acted under duress: “In receiving the money did Peter Whelan act under threats of immediate death or serious personal violence?” The jury felt so. The judge ruled that although he had acted under duress that it was not a defence but would act as mitigation in sentencing. On appeal to the Court of Criminal Appeal, the defendant argued that the jury’s finding that he had acted under duress amounted to an acquittal. The court outlined the scope of the defence. In relation to threats, it was held that “threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification [6] for acts which would otherwise be criminal”. The court noted that the application of the general rule must be subject to certain limitations: “where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time that crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in the antecedent threats”. The Court of Criminal Appeal held that the appellant’s conviction should not stand and directed a verdict of acquittal to be entered. The court also stated, obiter, that the plea of duress does not extend to murder.

Justificatory or Excusatory Defence?

The LRC in both the Consultation Paper [7] and the Report [8] recommended that the defence of duress be classified as excusatory: “The Commission recommends that duress should be recognised as an excusatory defence.” [9] When a defence is classified as excusatory it acknowledges that the accused’s action was a crime but that it can be in part forgiven, in this case due to the constrained choice faced by the accused. Fletcher regards the defence of duress as “an expression of compassion for one of our kind caught in a maelstrom of circumstances” [10] .

Nature of the Threats

While there were no actual threats in Attorney General v. Whelan [11] , the presence of Farnan who was armed amounted to threats of death or serious personal violence. The Court of Criminal Appeal in that case held that “threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which otherwise be criminal” [12] . In both the Consultation Paper [13] and the Report [14] the LRC recommended that “the threat which underpins the defence of duress should be one of death or serious harm” [15] . The LRC cites public policy as the reason for developing a threshold under which the defence of duress is not allowed to operate in this case the defence will not operate for threats less than those of “death or serious injury”.

In a 2007 Report [16] , the Law Reform Commission of Western Australia suggested that the scope could be widened to one where the threat was balanced with a reasonable response requirement. The LRC discussed the possibility of a proportionality test in the Consultation Paper. While the LRC conceded that it was arguable that such a test could be fairer, it felt that it was possible that in practice the test could be too vague. This argument was reiterated in the Consultation Paper [17] .

Target of the Threats

The majority of the time the threat will be made at the accused. While no reference was made to threats directed at third parties in Attorney General v. Whelan [18] there is a potential analogy to be made with position in legitimate defence and the case of The People (AG) v Keatley [19] which allowed self-defence to apply to the defence of others and no special relationship is necessary between the parties. This approach is also evident in the UK decision R v Hasan [20] where it was held that the threat may be directs not only against the accused but also against their immediate family, someone close to them or to someone for whose safety the accused would feel responsible. In Australian common law the threat must merely be to a “human being” [21] .The requirement that the threat must be one which a person could not reasonably be expected to bear relates closely to the target of the threat as it would become increasingly difficult to prove that the threat was too much to bear where the relationship between the accused and the target of the threat was remote. This requirement means that there is no need to limit to whom the threat may be directed at. Thus, with regard to the target of threats the LRC recommended that “the defence of duress should be available where a threat of death or serious harm is directed towards any person and that there should be no restriction in the availability of the defence in relation to the target of the threats”.

Effect of the Threat and Perception of the Defendant

In Attorney General v. Whelan [22] the Court of Criminal Appeal held “threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal”. The question is what standard should be applied to assess the accused’s conduct – objective, subjective or a combination of both? The defendant’s will must be overborne by the threats but different people react differently in similar situations. The test laid out in Attorney General v. Whelan [23] is an objective one: “ordinary power of human resistance”. However the test became more subjective in the case of People (DPP) v Dickey [24] : “It is not what you would do in the situation but what you perceive the accused’s powers were, and take into account the particular circumstances and human frailties of the accused specifically”. In the LRC’s Consultation Paper [25] a provisional recommendation was made with regard to the effect of the threat and the perception of the defendant: “that in establishing whether the response of the accused was a reasonable one, an objective test should be applied”. An objective test prevents accused people from abusing the defences in criminal law and doesn’t allow people to give into their fears, however since the defence of duress is an allowance for human frailty it shouldn’t be a purely objective test. In the UK, the Court of Appeal in R v Graham [26] laid down a test for the jury to decide whether duress arises based on whether a sober person of reasonable firmness sharing the same permanent characteristics [such as age, gender and physical health] of the accused would have acted in the same manner. The LRC recommends a similar test in Ireland: “that in establishing whether the response of the accused was a reasonable one, an objective test should be applied tempered with subjective elements.” [27] The LRC also “recommends that the court or jury as the case may be may take into account the age and sex of the defendant (and any other characteristics which bear upon the capacity of the defendant to withstand duress) in deciding whether a person of reasonable firmness would have acted as the defendant did.” [28] With regards to the belief of the accused to the existence, nature or seriousness of the threat, the LRC recommended an objective test in its Consultation Paper [29] : “the belief in the existence, nature and seriousness of the threats should be reasonably held and that the test should be what an ordinary person with the accused’s characteristics would have reasonably believed in the circumstances.” The Court reiterated this view once more in the Consultation Paper [30] but did not make a recommendation on this point.

Imminence Rule and Official Protection

In Attorney General v. Whelan [31] , the test was one of “immediate death or serious personal violence” where there was no “reasonable opportunity for the [defendant’s] will to reassert itself”. There is some overlap between the imminence rule and seeking of official protection. The logic is that the longer the time gap after the threat the more time there is to seek official protection. In Ireland there is very little to refer to on the topic of immediacy so the LRC looked to other common law jurisdictions. The English case of R v Hudson and Taylor [32] dealt with the issue of immediacy. Two young girls committed perjury after being threatened with serious violence by men associated with the case in which they were witnesses. The trial judge withdrew the defence of duress from the jury as the threats couldn’t have been carried out in the court. The Court of Appeal disagreed stating that the defence will not fail because the threatened injury may not follow immediately. The threat must be imminent but not necessarily be immediate. This was approved in R v Abdul-Hussain [33] where the Court held that “the peril must operate on the mind of the defendant at the time when he commits the otherwise criminal act, so as to overbear his will…but the execution of that threat need not be immediately in prospect.” The LRC agrees with the approach in R v Hudson and Taylor and R v Abdul-Hussain and cites from the latter case:

“If Anne Frank had stolen a car to escape from Amsterdam and been charged with theft, the tenets of the English law would not, in our judgment, have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo’s knock on the door.”

The LRC therefore recommends that “while the threat should be imminent, there should be no requirement of immediacy in relation to the harm threatened”

The defendant must believe that there is no real opportunity for him or her to seek official protection and that there is no other way of avoiding the harm. The LRC in the Consultation Paper [34] made clear that they did not feel that a failure to seek official protection should automatically bar an accused person from the defence of duress and provisionally recommended such but this recommendation did not carry directly over to the Report but is included in the first recommendation on duress: “The Commission recommends that…the features of the defence should include…there was no reasonable way to avoid the threat or make it ineffective”.

Exposure to the Risks of Duress

The defence of duress is generally regarded as not being available to defendants who have knowingly exposed themselves to the threat of which he or she now complains, by, for example, joining a criminal organisation. This is a very important limitation on the defence of duress whereby the accused cannot raise the defence on the basis of prior fault. Lord Bingham in R v Hasan [35] said that the law should be “slow to excuse the criminal conduct of those who do voluntarily associate themselves with criminal gangs or organisations” [36] . The LRC accordingly recommends “that a person who seeks to avail of the defence of duress may not do so if they ought reasonably to have foreseen the likelihood of being subjected to threats, for example, by voluntarily joining a criminal organisation which subsequently puts pressure on the person to commit offences” [37]

Burden of Proof

The burden of proof as provisionally recommended in the Consultation Paper [38] provides “that the onus should remain on the prosecution to disprove the defence of duress beyond a reasonable doubt.” No recommendation was made in the Report as to this element.

Marital Coercion

Marital coercion refers to a defence which could be invoked by married women who had committed a crime [39] in the presence of their husband. There was a presumption that when a married woman committed an offence in the presence of her husband that she should be excused and regarded as having acted under coercion. The prosecution could rebut this presumption if they could prove that the married woman had taken the initiative in carrying out the offence. In England, a wife may still the defence of marital coercion but the burden of proof is on her to prove, on the balance of probabilities that she was subject to coercion. However a rule such as this could not be enacted in Ireland in light of the judgment of Henchy J in State (DPP) v Walsh and Conneely, where he held that the defence runs contrary to the concept of equality before the law [40] :

“A legal rule that presumes, even on a prima facie and rebuttable basis, that a wife has been coerced by the physical presence of her husband into committing an act prohibited by the criminal law, particularly when a similar presumption does not operate in favour of a husband for acts committed in the presence of his wife, is repugnant to the concept of equality before the law guaranteed by the first sentence of that Article, be justified as a discrimination based on any difference of capacity or of social function as between husband and wife. Therefore, the presumption contended for must be rejected as being a form of unconstitutional discrimination”

In its Report the LRC “recommends that the defence of marital coercion should be formally abolished by statute” [41] , a position which most common law jurisdictions have taken e.g. Canada [42] and New Zealand [43] .

Duress and Murder

In Attorney General v. Whelan [44] it was mentioned obiter that the defence of duress did not apply to murder: “The commission of murder is a crime so heinous that [it] should not be committed even for the price of life and in such a case the strongest duress would not be any justification”. [45] In the Consultation Paper [46] the LRC provisionally recommended “The Commission provisionally recommends that the defence of duress should apply to all offences excluding murder and attempted murder.” The LRC however, also invited submissions on whether duress could be treated as a complete or partial defence to those offences on the grounds of the “lesser evils” test.

Many arguments have been raised against the extension of the defence of duress to murder. The most important of these is the sanctity of human life. The courts cannot justify placing the compassion felt for someone who killed an innocent over the sanctity of human life. There is also the argument that the threat to the accused may not be acted upon and so they shouldn’t be given carte blanche to kill if under threat when the threat may not materialise. Arguments have also been raised in favour of extending the defence to murder. Firstly, the law shouldn’t expect people to be heroes and sacrifice their own life for the sake of that of another. If you can invoke the defence of provocation when the accused killed someone why, for the sake of consistency in the law would the defence of duress be inapplicable to murder? The LRC concluded that it was preferable not to extend the defence to murder: “The Commission recommends that the defence of duress should be generally available as a defence, but not int he case of treason, murder or attempted murder”.

Necessity and Duress of Circumstances

Necessity is a recognised defence in Irish law however the defence is a very narrow one. It has been recognised as both an excusatory and justificatory defence. Necessity applies in cases where there is a constrained choice due to exceptional circumstances.

The LRC provisionally recommended, in the Consultation Paper [47] “that the defence of necessity be continued on its traditional excusatory basis”. However in the Report the LRC concluded that the most practical solution is simply to recognise that necessity can be both a justification and an excuse depending on the circumstances.

The LRC recommends “that the defence of necessity, to the extent that it exists, should continue to be developed on a case-by-case basis, such as in the Criminal Damage Act 1991 or in cases of medical necessity”. [48]

The LRC also recommends “that the defence of duress of circumstances be placed on statutory footing, having the same scope and application as the defence of duress by threats”. [49] This is a significant shift of position from that advocated in the Consultation Paper [50] where the LRC said that they were of the opinion that the defence of duress of circumstances was a defence of necessity in all but name and that there was no need to introduce it into Irish law as the current defence of necessity could just be developed.

Conclusion

Recommendations made on both the defences of duress and necessity were discussed in this essay with a view to summarizing the Law Reform Commissions Report on Defences in Criminal Law in the areas of duress and necessity.