chapter  8
Pages 62

The principles applying are identical in either case of duress. The principles were originally established in duress by threat cases and subsequently applied to duress of circumstances.

8.1.2 The seriousness of the threat The threats must be of death or serious personal injury (Hudson and Taylor [1971] 2 QB 202; Hasan [2005] UKHL 22; [2005] 2 AC 467). In A [2012] EWCA Crim 434; [2012] 2 Cr App R 8, Lord Judge CJ stated that duress ‘involves pressure which arises in extreme circumstances, the threat of death or serious injury, which for the avoidance of any misunderstanding, we have no doubt would also include rape’. Strictly speaking, this comment was obiter, because the Court of Appeal rejected A’s appeal against her conviction on the ground of lack of evidence that she had, in fact, been threatened with rape. However, it seems perfectly sensible to regard rape as an example of ‘serious personal injury’. In A, the Court of Appeal emphasised that ‘pressure’ falling short of a threat of death or serious injury did not support a plea of duress. This was designed to prevent the floodgates being opened because, as Lord Judge stated, ‘the circumstances in which different individuals are subject to pressures, or perceive that they are under pressure, are virtually infinite’. A threat to damage or destroy property is therefore insufficient (M’Growther [1746] Fost 13). In Lynch (1975), Lord Simon said: ‘The law must draw a line somewhere; and as a result of experience and human valuation, the law draws it between threats to property and threats to the person.’ Similarly, threats to expose a secret sexual orientation are insufficient (Singh [1974] 1 All ER 26; Valderrama-Vega [1985] Crim LR 220). In Baker and Wilkins [1996] EWCA Crim 1126; [1997] Crim LR 497, a duress of circumstances case, the Court of Appeal refused to accept an argument that the scope of the defence should be extended to cases where D believed the act was immediately necessary to avoid serious psychological injury as well as death or serious physical injury. More recently, in Dao, Mai and Nguyen [2012] EWCA Crim 1717, the Court of Appeal was asked whether a threat of false imprisonment would support a plea of duress. The Court found it unnecessary to reach a firm decision on the point – there was insufficient evidence of the appellants having been threatened with imprisonment, as they claimed – but did express a ‘provisional’ view, namely, that ‘we would have been strongly disinclined to accept that a threat of false imprisonment suffices for the defence of duress . . . In our judgment, even if only provisionally, policy considerations point strongly towards confining the defence of duress to threats of death or serious injury.’ Although there must be a threat of death or serious personal injury, it need not be the sole reason why D committed the offence with which he is charged. This was seen in Valderrama-Vega.