​KembaraXtra-Case Law-Ortiz (1986)
​Case: Ortiz (1986) CA
Topic: Duress - Threats against Third Parties

Key Facts:

• The defendant (D), a Colombian national, entered England with his wife and child on holiday.
• A person referred to as "C" asked D to act as a drug courier.
• C threatened to cause serious harm to D's wife and child if D refused to comply.
• D took possession of the drugs.
• D was arrested by the police who discovered the drugs in his possession.

Legal Principle Established (Held):

• Threats directed at a third party are sufficient to establish duress. The threats made by C against D's wife and child were deemed adequate for a defence of duress to be considered.
• The threats do not need to be directed solely at the defendant. This case clarifies that the scope of duress can extend to threats against individuals closely connected to the defendant, such as their family members.

Points for Understanding and Study:

• Definition of Duress (in this context): Duress arises when a person commits an offence because they have been coerced by threats of death or serious injury to themselves or another person.
• Distinguishing Feature of Ortiz: Prior to this case, there might have been ambiguity about whether threats to family members would suffice. Ortiz definitively resolves this by confirming that threats to a defendant's wife and child are a valid basis for a duress defence.
• Implications: This ruling broadens the scope of the duress defence, recognising that an individual's coercive control can extend beyond direct threats to their own person.
• Elements to Prove for Duress (General): While not explicitly detailed in this excerpt, remember that for the defence of duress to succeed in general, the following are typically required:
  • There must have been a threat of death or serious injury.
  • The threat must have been to the defendant or to another person (as established in Ortiz).
  • The defendant must have reasonably believed the threat would be carried out.
  • The defendant must have had no effective avenue of escape from the threat.
  • The defendant's actions must have been a direct result of the threat.
• Application: Consider scenarios where a person is forced to commit a crime due to threats against their children, spouse, or other close relatives. This case provides the legal precedent that such threats can be the foundation of a duress defence.

Key Takeaway: The Ortiz case significantly expands the protection offered by the defence of duress by confirming that threats to a defendant's family members are just as potent in vitiating consent as threats directed at the defendant themselves.

​KembaraXtra-Case Law-DPP v Martin (1989)
​1. Case Citation: DPP v Martin (1989)
2. Offence Charged: Driving whilst disqualified.
3. Factual Background:

• Defendant (D): Charged with driving whilst disqualified.
• Wife's Condition: D's wife suffered from suicidal tendencies and had a history of suicide attempts.
• Son's Situation: D's son had overslept and was at risk of being late for work.
• D's Action: To prevent the son from losing his job, D drove his son to work. This was despite being disqualified from driving.
• Motive for Action: D's wife was significantly distressed and threatening suicide, which was the primary reason D acted.

4. Legal Issue: Whether the defence of duress of circumstances was available to the defendant.
5. The Defence of Duress of Circumstances:

• Definition: This defence arises when a person commits an offence under circumstances that have compelled them to act in a way they would not ordinarily do, due to an immediate threat of death or serious injury.

6. Court's Holding (Decision):

• The court allowed the defence of duress of circumstances.

7. Reasoning for the Holding:

• Threat of Death or Serious Injury: The court found that there was a threat of death or serious injury directed against D's wife. The wife's suicidal tendencies and threats constituted the "circumstances" under which D acted.
• Reasonable and Proportionate Response: For the defence to succeed, D must have acted reasonably and proportionately in order to avoid the threat. This implies that the action taken by D must have been a necessary and appropriate response to the imminent danger.

8. Key Takeaway Points for Study:

• Duress of Circumstances: Understand the core elements of this defence, particularly the presence of an imminent threat of death or serious injury.
• Nexus between Threat and Action: Emphasise that the defence requires a direct link between the threat (in this case, the wife's suicidal state) and the commission of the offence (driving whilst disqualified).
• Reasonableness and Proportionality: This is a crucial limitation on the defence. D's actions must be objectively assessed as a reasonable and proportionate response to the perceived threat. Driving to the workplace, in this instance, was deemed a reasonable measure to de-escalate the wife's distress and prevent a potential suicide, thereby avoiding the greater harm.
• Distinction from Duress by Threat: While related, duress of circumstances focuses on external pressures or situations, rather than a direct threat from another person.

​KembaraXtra-Case Law- Conway (1988) CA
​I. Case Overview

• Parties:
  • D: Defendant (driver of the car)
  • T: Passenger wanted by police
  • Police Officers: Two approaching the car
• Facts:
  • D was parked with two passengers.
  • One passenger, T, was wanted by the police.
  • Two police officers approached the car to speak to T.
  • T instructed D to drive away.
  • D drove away at great speed and in a reckless manner.
  • D was charged with reckless driving.

II. Defence Raised

• Defence: Duress of Circumstances
• Basis of Defence:
  • D claimed T had narrowly avoided being shot by two men a few weeks prior.
  • When plain-clothed officers approached the car, D thought they were going to shoot T.
  • D stated he only realized they were police officers after dropping T off at a safe location.

III. Court's Holding (Legal Principle)

• Held: Necessity will only be a defence to the charge of reckless driving where D was under duress of circumstances.
• Definition of Duress of Circumstances:
  • D was constrained by circumstances.
  • The constraint was to avoid death or serious injury.
  • The threat of death or serious injury was to himself or another person.

Key Takeaway: The defense of duress of circumstances requires a direct and immediate threat of death or serious injury that compels the defendant's actions. The belief that such a threat exists, even if mistaken, may be relevant, but the circumstances themselves must necessitate the unlawful act.

​KembaraXtra-Case Law-Bowen (1996) CA - Study Notes
​I. Case Summary

• Defendant (D): Charged with obtaining services by deception.
• Defense: Duress, claiming two men threatened his family.
• Key Argument for Duress:
  • D was abnormally suggestible.
  • Psychiatrist testified D's IQ was only 68.
• Outcome at Trial: Convicted.
• Appeal Ground: Judge failed to direct the jury to consider D's characteristics in applying the objective test for duress.

II. Held (Per Stuart-Smith LJ)A. Characteristics Not Legitimate for the "Reasonable Person" Test

• (1) "Mere fact" characteristics:
  • More pliable
  • Vulnerable
  • Timid
  • Susceptible to threats
  • These cannot be attributed to the reasonable/ordinary person for the objective test.

B. Categories of Persons Where Pressure Resistance May Differ

• (2) Recognized categories for jury consideration:
  • Age: Obvious example.
  • Sex: Possibly.
  • Pregnancy: Where there is added fear for the unborn child.
  • Recognized mental illness or psychiatric condition: E.g., Post-traumatic stress disorder (PTSD) leading to learned helplessness.

C. Admissibility of Psychiatric/Medical Evidence

• Purpose of evidence: To show D suffered from a mental illness, mental impairment, or other recognized psychiatric condition making them more susceptible to threats.
• Procedure: If D wishes to submit a characteristic listed in (2), they must make it clear to the judge, who will then rule on the admissibility of medical evidence.

D. Application to This Case

• D's abnormal suggestibility was irrelevant.
• D's low IQ (68):
  • Fell short of mental impairment or defectiveness.
  • Not a characteristic that makes people less courageous or able to withstand threats/pressure.
• Conclusion on Jury Direction: The judge had directed the jury sufficiently, allowing them to only consider D's age and sex.

​KembaraXtra-Case Law- Hegarty (1994) CA - Duress and Defendant Characteristics
Case Summary
​Defendant (D): Charged with robbery.
Defence: Duress.
D's Claim: Attacked by men who threatened violence against his family if he did not commit the robberies.
Key Issue at Trial: D sought to introduce evidence of his mental instability.
D's Background: History of mental illness, described as 'emotionally unstable' and in a 'grossly elevated neurotic state'.
Court of Appeal (CA) RulingKey Holding: D's emotionally unstable or grossly elevated neurotic state was not a relevant characteristic to consider in the test for duress.
Rationale:

1. Test for Duress: The test of whether D's will was overborne is not purely subjective.
2. Objective Element: The jury must also consider the response of a "sober person of reasonable firmness 'sharing the characteristics of the defendant'."
3. Relevant Characteristics: The court can take into account:
   • Age
   • Sex
   • Physical health
4. Irrelevant Characteristics: The court cannot take into account a personality disorder or mental instability such as that experienced by D in this case.

Implications for Duress Defence

• Mixed Subjective/Objective Test: The defence of duress involves both a subjective element (was D's will overborne?) and an objective element (would a reasonable person, sharing some of D's characteristics, have succumbed?).
• Limited Scope of "Characteristics": While some personal characteristics are relevant, mental instability or personality disorders are generally excluded when assessing the objective standard of reasonable firmness. This prevents the bar for duress from being lowered for individuals with certain psychological vulnerabilities.
• Focus on Reasonableness: The law seeks to balance the understanding of the defendant's immediate fear with the need to maintain a standard of reasonable fortitude in the face of threats.

​KembaraXtra-Case Law-Flatt (1996) CA - Duress and Drug Addiction
​I. Case Information

• Case Name: Flatt (1996) CA
• Court: Court of Appeal (CA)
• Key Area of Law: Duress Defence

II. Case Summary

• Defendant (D) Charged with: Possession of drugs with intent.
• D's Defence: Duress.
• Basis of Duress Claim:
  • Addicted to crack cocaine.
  • Owed dealer £1,500.
  • Dealer threatened to shoot D's grandmother and girlfriend if D didn't look after drugs.
• Initial Outcome: D convicted.
• Grounds for Appeal: Judge should have directed the jury to consider D's drug addiction in applying the objective test for duress.

III. Court's Decision and Reasoning

• Appeal Outcome: Dismissed.
• Key Holdings:
  1. Drug addiction is a self-induced condition.
  2. Drug addiction is NOT a characteristic to be considered in the objective test for duress.
  3. Lack of Evidence: No evidence that drug addiction made D less able to withstand threats or pressure.

IV. Legal Principles & Implications

• Objective Test for Duress: The court reaffirms that the test for duress involves an objective element (whether a reasonable person of the defendant's sex and age, and with any relevant characteristics, would have acted as the defendant did).
• Self-Induced Conditions: The ruling highlights that self-induced conditions generally do not qualify as "characteristics" for the purpose of the objective test in duress.
• Burden of Proof: Implicitly, the defendant bears the burden of demonstrating how a characteristic (if accepted) would have affected their ability to resist threats.
• Limitation on Duress Defence: This case limits the scope of the duress defence, particularly when self-induced conditions are cited as a mitigating factor.

​KembaraXtra-Case Law- Emery (1993) CA - Learned Helplessness and Duress
​I. Case Background:

• Defendant (D): Convicted of cruelty leading to the death of her 11-month-old child.
• D's Defense: Claimed to have developed "learned helplessness" due to years of violence from the child's father. This condition allegedly rendered her unable to resist his pressure or threats, impacting her actions (or inactions) concerning the child.

II. Key Legal Issue:

• Can a history of domestic violence, leading to a state of "learned helplessness," be considered relevant evidence in a criminal defense, specifically to explain an inability to withstand duress?

III. Court's Holding (Decision):

• Yes. The court ruled that the history of violence experienced by the defendant was relevant evidence.
• This history was deemed directly pertinent to explaining D's alleged inability to withstand duress.

IV. Rationale for the Holding (per Taylor LCJ):

• Evidence can be admitted from an expert witness to:
  • Provide an expert account of the causes and nature of "dependent helplessness" (learned helplessness).
  • Explain the circumstances under which such a condition might arise.
  • Determine the level of abuse required to induce this condition.

V. Significance for Legal Study:

• Emery (1993) is a landmark case for understanding the intersection of psychological conditions (specifically learned helplessness) and criminal law defenses, particularly duress.
• It establishes the precedent that expert testimony on learned helplessness can be crucial in explaining a defendant's capacity to act under pressure, even when that pressure is long-standing and originates from a domestic context.
• This case highlights the court's willingness to consider complex psychological states as factors in determining criminal culpability and understanding a defendant's actions.
• Key takeaway for defenses involving duress: The subjective experience and psychological impact of ongoing abuse can be a legitimate factor in assessing a defendant's ability to resist threats or pressure. Expert evidence is vital in substantiating such claims.

KembaraXtra-Case Law-R v Graham (1982) - Duress and the Sober Person Test
Case Citation: R v Graham [1982] 1 WLR 294
Keywords: Duress, Subjective Test, Objective Test, Sober Person of Reasonable Firmness, Voluntary Intoxication


I. Factual Summary

• Individuals Involved:
  • D (Defendant): Practicing homosexual, living in a ménage à trois with K and D's wife. Suffering from anxiety, taking medication making him vulnerable to bullying.
  • K: Violent man, jealous of D's wife.
  • D's Wife: Victim.
• Incident: One night, after D had been drinking heavily, K placed an electric cord around the wife's neck. K then ordered D to pull the other end, which D did, resulting in the wife's death.
• Defendant's Claim: D asserted he complied due to fear of K, exacerbated by the anxiety medication he was taking.

II. Legal Issue: Duress
The central legal question was whether D could successfully argue the defense of duress, meaning he was forced to commit the crime by a threat of death or serious injury.


III. Court's Decision and the "Graham Test"
The Court of Appeal established a two-part test for duress, which juries must consider:

1. Subjective Question:
   • Question: Was the defendant impelled to act as they did because they genuinely and reasonably believed that, if they did not comply with the threat, the person issuing the threat would kill them or cause them serious injury?
   • Focus: This part assesses the defendant's honest and reasonable perception of the threat.
2. Objective Question:
   • Question: Would a sober person of reasonable firmness, sharing the defendant's relevant characteristics, have responded to the reasonably believed threat by taking part in the killing?
   • Focus: This part introduces an objective standard. It asks whether a hypothetical reasonable person, with similar traits to the defendant, would have succumbed to the pressure.

IV. Key Principle Regarding Voluntary Intoxication

• Rule: The fact that the defendant's ability to resist a threat was weakened or eroded by the voluntary consumption of drink or drugs is NOT relevant to the duress test.
• Implication: Voluntary intoxication cannot be used to justify a lowered standard of resistance when assessing duress. The "sober person" standard remains.

V. Application to the Graham Case
In the specific case of D, the jury would have had to consider:

1. Did D genuinely and reasonably believe that K would kill him or cause him serious injury if he did not pull the cord?
2. Would a sober person of reasonable firmness, sharing D's characteristics (e.g., anxiety, potential vulnerability), have also complied with K's demand to kill the wife? The fact that D had been drinking heavily would be disregarded for this objective assessment.

VI. Significance of R v Graham

• Definitive Test for Duress: This case established the definitive two-part test for duress that remains influential in English law.
• Balance of Subjectivity and Objectivity: It balances the defendant's individual perception of the threat with an objective standard of resistance.
• Impact of Intoxication: It clearly excludes voluntary intoxication as a factor in lowering the expected standard of resilience against threats.

KembaraXtra-Case Law-O'Grady (1987) - Intoxicated Mistaken Self-Defence
Key Legal Principle: There is no distinct defence of "intoxicated mistaken self-defence" in English law.
Factual Summary:

• Defendant (D): O'Grady
• Action: Killed a friend.
• Circumstances: D was heavily intoxicated and believed his friend was attacking him. He responded with what he thought were minor blows in self-defence.
• Charge: Convicted of manslaughter.
• Defence Pleaded: Intoxicated mistaken self-defence.

Court's Decision (Held):

• The court explicitly ruled that no such defence exists, regardless of whether the crime charged requires basic or specific intent.
• Crucial Distinction: The issue of mistake must be considered separately from intent and intoxication.
• Impact of Voluntary Intoxication on Mistake: If a defendant's mistaken belief that force was necessary for self-defence was induced by voluntary intoxication, then the defence of self-defence will fail.

Implications for Understanding Self-Defence and Intoxication:

• Voluntary intoxication generally cannot be used to negate mens rea (guilty mind) for basic intent crimes.
• While intoxication can be relevant to negating specific intent for specific intent crimes, it does not create a special defence when that intoxication leads to a mistaken belief about the need for self-defence.
• The law prioritizes the principle that individuals are responsible for their actions, even when intoxicated, especially if that intoxication leads to a harmful mistake regarding the use of force.

Key Takeaway for Study:

• When analyzing self-defence cases involving intoxication, always assess:
  1. Was the defendant's mistake about the need for force induced by voluntary intoxication?
  2. If so, the defence of self-defence will be unsuccessful, as per O'Grady.
  3. Remember that the court will not recognize "intoxicated mistaken self-defence" as a valid legal argument.