Duress — R v Hasan

Facts

Hasan worked as a driver and minder for a violent drug dealer. The dealer ordered him to take part in a burglary of a house. Hasan said that the dealer threatened him and his family with violence if he did not do so. He was charged with aggravated burglary.

History

At trial the judge ruled that duress was not available on the facts, because Hasan had voluntarily associated with a criminal and violent group, and left the jury no defence of duress. He was convicted. The Court of Appeal dismissed his appeal and he appealed to the House of Lords.

Issue

What are the requirements of the defence of duress by threats, and in particular whether the defence is lost where the defendant voluntarily put himself in a position where he was exposed to compulsion, and whether the test is subjective or objective.

Held

Appeal dismissed. The defence of duress was excluded because the defendant had voluntarily associated with a criminal enterprise and foresaw, or ought reasonably to have foreseen, the risk of being subjected to compulsion by threats of violence.

Ratio

• The defence of duress by threats is excluded where the defendant, by voluntarily associating with others engaged in criminal activity, foresaw or ought reasonably to have foreseen the risk of being subjected to compulsion to commit criminal offences. This is an objective test of what he ought to have foreseen, and it is not limited to cases where he knew the type of crime that would be demanded.
• The defence requires that the threat was of death or serious injury, that the defendant reasonably believed the threat would be carried out, and that a person of reasonable firmness, sharing the characteristics of the defendant, would have responded as he did. The burden is on the prosecution to disprove it once it is raised.

The judgments

Key reasoning

• Duress is a defence of necessity of limited scope, and for policy reasons the courts should be careful not to allow it to be used by those who put themselves in the way of coercion by joining criminal groups.
• The rule that the defence is lost by voluntary association should be tested by what the defendant foresaw or ought reasonably to have foreseen, because a test limited to what he actually foresaw would be too narrow.
• The exclusion for voluntary association does not apply merely because the defendant joined a criminal gang with no violent character, and what must have been foreseeable is compulsion by threats of violence.

Where it fits in the module

In the Incapacity and General Defences topic the case governs the defence of duress by threats, its relationship with necessity, and its limits. The module debates whether duress should be a justification or an excuse, whether it should be available for murder, and whether the objective test and the exclusion for voluntary association are fair to vulnerable defendants. It should be read with Graham, Howe, Abdul-Hussain and the later reforms proposed by the Law Commission.

Criticisms

• The objective test of foreseeability is harsh on defendants who joined groups in circumstances where they had little real choice, and it blurs the line between culpable prior fault and the need for compulsion.
• The exclusion for voluntary association is vague, because it does not say which associations are enough, and the distinction between a criminal group with a violent reputation and one without is difficult to apply.
• The standard of a person of reasonable firmness sharing the characteristics of the defendant leaves it unclear which characteristics are relevant, for example mental condition, and it has been argued that an objective standard of firmness is too demanding for vulnerable defendants.