Bowen, R. v

Facts

The defendant had a low intelligence quotient, in the region of 68, and was described as suggestible. He was threatened by two men that his house would be attacked with petrol bombs, with his family inside, unless he obtained goods on credit for them. He did so by deception.

History

He was convicted at trial of offences of dishonesty, the judge having refused to allow the jury to take account of his low intelligence when applying the test for duress. He appealed against conviction.

Issue

Which characteristics of the defendant may be taken into account in deciding whether a sober person of reasonable firmness would have given way to the threat, and whether low intelligence and suggestibility are among them.

Held

Appeal dismissed. Low intelligence and suggestibility without a recognised mental condition were not characteristics relevant to the objective test.

Ratio

• In the objective limb of duress the jury considers whether a sober person of reasonable firmness sharing the characteristics of the defendant would have responded as he did, but only characteristics such as age, sex, pregnancy, serious physical disability or a recognised mental or psychiatric condition are relevant, and low IQ and vulnerability of that kind are not.

The judgments

Key reasoning

• The test of duress, as stated in R v Graham [1982] 1 WLR 294, asks whether the defendant was impelled to act by a reasonable belief that he would otherwise suffer death or serious injury and whether a sober person of reasonable firmness would have acted as he did.
• The reasonable person sharing the characteristics of the defendant must be limited to characteristics which make the defendant more susceptible to pressure, such as age or sex, or which are recognised mental conditions, not matters of general vulnerability.
• Allowing characteristics such as low intelligence and pliability would erode the objective standard, because each defendant would be judged by his own level of firmness.

Where it fits in the module

Topic 8 includes duress as a general defence, whose central tension is between an objective standard of reasonable firmness and the subjective position of the defendant under pressure. The case shows how the courts mediate the tension by selecting characteristics that may be attributed to the reasonable person. It is also relevant to the debate on whether duress should be an excuse or a justification, and on how far it should respond to personal vulnerability.

Criticisms

• Excluding low intelligence and suggestibility while admitting recognised conditions produces arbitrary distinctions between defendants whose capacity to resist threats is in practice the same.
• The objective test demands a standard of firmness that some defendants cannot meet, which is at odds with the idea that duress excuses those who cannot reasonably be expected to resist.
• Defining relevant characteristics by reference to categories such as age and sex rather than by the effect on resistance leaves the law without a principle for new cases.