Duress in United Kingdom

Definition of Duress

In accordance with the work A Dictionary of Law, this is a description of Duress :

Pressure, especially actual or threatened physical force, put on a person to act in a particular way. Acts carried out under duress usually have no legal effect; for example, a contract obtained by duress is voidable (See also economic duress; undue influence). In criminal law, when the defendant’s power to resist is destroyed by a threat of death or serious personal injury, he will have a defence to a criminal charge, although he has the *mens rea for the crime and knows that what he is doing is wrong. Duress is not a defence to a charge of murder as a principal (i.e. to someone who actually carries out the murder himself), although it is still a defence to someone charged with aiding and abetting murder. The threat need not be immediate; it is sufficient that it is effective; for example a threat in court to kill a witness may constitute duress and thus be a defence to a charge of perjury, even though it cannot be carried out in the courtroom. However, the defence is unavailable to someone who failed to take available alternative action to avoid the threat.

See also coercion; necessity; self-defence.

Definition of Duress

In english criminal law duress is a limited defence to criminal charges.

Meaning of Duress

The following is an old definition of Duress [1]: In its more extended sense, that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient, in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness. Actual violence is not necessary to constitute duress, even at common law, as understood in the parent country, because consent is the very essence of a contract, and, if there be compulsion, there is no actual consent, and moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisoimient, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no contract, because, in that state of the case, there is no consent. Text-writers divide the subject into duress per minas and diiress of imprisonment.

This classification was uniformly adopted in the early history of the common law, and is generally preserved in the decisions of the English courts. Where there is an arrest for an improper purpose, without just cause, or where there is an arrest for a just cause but without lawful authority, or for a just cause but for an unlawful purpose, even though under proper process, it may be construed as ” duress of imprisonment;” and if the person arrested executes a contract or pays money for his release, he may avoid the contract as one procured by duress, and recover the money in an action for money had and received.

” Duress per minas,” as defined at common law, is where a party enters into a contract for fear of loss of life, loss of limb, of mayhem, or imprisonment. Many modern decisions of the courts of England still restrict the operation of the rule within those limits. Those decisions deny that contracts procured by menace of a mere battery to the person, or of trespass to lands, or loss of goods, can be avoided on that account, and the reason assigned is that such threats are not of a nature to overcome the mind and will of a prudent man, because if such an injury is inflicted adequate redress may be obtained in a suit at law. Cases to the same effect may be found in the re- ports of decisions m this coimtry, and some of our text-writers have adopted the rule that it is only where the threats uttered excite fear of death, or of great bodily harm or unlawful Imprisonment, that a contract, so procured, can be avoided, because, as such courts and authors say, the person threatened with slight injury to the person, or with loss of property, ought to have sufficient resolution to resist such a threat, and to rely upon the law for his remedy. On the other hand there are many American decisions of high authority which adopt the more liberal rule that a contract procured by threats of battery to the person, or of the destruction of property, may be avoided on the ground of duress, because in any such case there is nothing hut the form of a contract. But all cases agree thata contract procured through fear of loss of life, produced by the threats of the other party, wants the essential element of consent, and may be avoided for duress.

“Duress of imprisonment ” is a compulsion by an illegal restraint of liberty. This will avoid an extorted bond. But if a man is lawfully imprisoned, and to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by such duress. In the law of homicide, in self-defense, “duress of imprisonment ” is where a man actually loses his liberty. ” Duress per minas ” is where the hardship is only threatened and impending, and is for fear of loss of life, for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason – before a man may kill in self-defense. A fear of battery is no duress; neither is fear of one’s house being burned, or of one’s goods being taken away and destro.ved; because for these a man may have satisfaction in damages,but no suitable atonement can be made for loss of life or limb.

“Duress of goods” is by unlawfully seizing or withholding property, or threatening to do so, till some demand be acceded to. The payment of money by the owner of goods in order to redeem them from the hands of a person who unlawfully withholds them and demands such money, may be treated as a compulsory payment, so that the amount is recoverable, as having been obtained by oppressive means. The owner of the goods may have so urgent occasion for them that the ordinary action would afford imperfect redress. Duress exists where one, by the unlawf nl act of another, is induced to make a contract or to perform some act under circumstances which deprive him of the exercise of free will. . .

” Duress of the person” is by imprisonment, by threats, or by an exhibition of force which apparently cannot be resisted. . .

” Duress of goods ” may exist when one is compelled to submit to an illegal exactjon in order to obtain them from one who has them in possession but refuses to surrender them unless the exaction is submitted to. To constitute coercion or duress sufficient to make a payment involuntary, there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment.

Excessive charges, involuntarily paid to railroad companies refusing to cany or deliver goods, have been recovered on the ground of distress. Mere vexation and annoyance do not constitute such duress as will justify setting aside a deed, unless insanity ensued and existed at the time of execution. Threats of lawful prosecution, resorted to to over-come the will through intimidation, will avoid a contract thereby obtained. Regard is had to age, sex, and condition. If the threats are such as tend to deprive a particular person of his freedom of will he will be relieved from liability, although the same threats would not produce a like effect on a firm and courageous man. Where there is no arrest made nor force used, simply threats uttered, the question as to the duress by which a promise is alleged to have been obtained is ordinarily one of fact. It must be shown that the threats constrained the will of the promisor. See Coercion; Consent; Influence; Payment, Compulsory.

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Notes and References

1. Concept of Duress provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)