The relevance of shepherd to the defence of duress

The defence of duress by threats is one of several general defences. General defences are ‘all or nothing’ in the sense that if they are successful the defence leads to acquittal, if they are not accepted then the defendant is convicted.

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The defence of duress by threats is one of several general defences. General defences are ‘all or nothing’ defences in the sense that if they are successful the defence leads to acquittal, if they are not accepted then the defendant is convicted.

The facts of the case relating to Shepherd in R v Shepherd (1987) are relatively straightforward. Shepherd joined a gang of thieves whose method of operation was to steal from shops.  They did this by distracting staff.  While one gang member distracted the shopkeeper the others stole goods.

Shepherd claimed that after the first theft he wanted ‘out’ of the organisation but that other gang members threatened him and his family with violence.  He felt compelled to carry on.  He felt he had no choice.  

The case of Shepherd is often compared and contrasted with the case of Sharp 1987.

Like Shepherd, Sharp had voluntarily joined a gang, using force to rob from post offices and other institutions.  The gang had a propensity to violence and this would have been known to Sharp.  He wanted to withdraw from the gang but found himself the subject of violent threats.  He claimed the 'defence of duress' but he was not as successful as Shepherd.  The cases can be distinguished from each other.

The material facts are sufficiently different.  In the case of Shepherd there was no prior history of violence when the gang carried out their criminal activities – in fact the very opposite.  The gang used deception to distract staff.  Whereas, in the case of Sharp, there was a history of violence.  Robbery is after all theft with the presence or threat of force.  It was probably a surprise to Shepherd that threats were made to him. Sharp, on the other hand, could hardly have been surprised, because the gang members had a history of violence.

In Shepherd’s case his conviction for theft was quashed on appeal and the case distinguished from Sharp (which had in turn followed Fitzpatrick 1977). Whilst it is expected that a person joining a gang of armed robbers or a paramilitary organisation may be liable to threats if they want to end their involvement, it is not a foregone conclusion that it will happen within every gang. The Court of Appeal held that the jury should at least have been asked to consider whether Shepherd could be said to have known the risk of violence merely by joining a gang whose activities were not openly violent. The jury might still have convicted Shepherd, but they should have been given the chance to decide.

In Sharp's case he had joined a violent gang who had carried out a series of armed robberies on sub post offices. In one such robbery the post master was shot and killed. Sharp was found guilty of manslaughter. On appeal Lord Lane CJ; said “…the defence of duress was not available to a person who voluntarily and with knowledge of its nature joined a criminal organisation or gang, which he knew might bring pressure on him to commit an offence, and was an active member when he was put under such pressure.”

The case of Fitzpatrick that arose out of the violent activities of the IRA, clearly established that even if the defence of duress was made out in accordance with the test laid down in Graham 1982, there were limits to the defence.  The defence would not be extended to someone who had voluntarily joined a criminal gang and then been forced to participate in criminal activities which he or she did not wish to carry out.

In Fitzpatrick the Court of Criminal Appeal in Northern Ireland considered the matter in depth Lowry LCJ stated: "A person may become associated with a sinister group of men with criminal objectives and coercive methods of ensuring that their lawless enterprises are carried out and thereby voluntarily expose himself to illegal compulsion, whether or not the group is or becomes a proscribed organisation ….. ….. if a person voluntarily exposes and submits himself, as the appellant did, to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid."

The courts were clearly concerned at this time about the threat of rising violence.  This concern has not been lost in relation to concerns about the risks and dangers associated with drug related activities.

In a series of cases the courts have extended the principles laid down by such cases as Fitzpatrick 1977 and Sharp 1987 to drug related crime where violence is associated with non payment to suppliers and dealers.  The defence of duress failed in a series of cases involving drugs and where violence by the gang itself featured. The cases are Ali 1995, Flatt 1996, Heath 1999 and Harmer 2001.

The case of R v Flatt involved a drug addict who had become reliant and indebted to his supplier. The appellant stated that his supplier had demanded that he took charge of some drugs for him otherwise he would shoot his mother, grandmother and his girlfriend. Flatt was convicted of possession with intent to supply. He appealed basing his appeal on whether his characteristic of being a drug addict should have been taken into account. His appeal was dismissed and his conviction was upheld, drug addiction was a self-induced condition not a characteristic.

Again in Heath the defendant had been charged with possessing drugs with intent to supply. Similarly he argued duress. He was a heroin user and had become indebted and reliant on his own supplier, who had threatened serious injury if he did not co-operate. His appeal was dismissed and his conviction was upheld, he had put himself into a position where he could expect to be at risk of threat and where he could be forced into committing a criminal offence. The defence of duress was precluded.

The defence did succeed in the Court of Appeal in the case of Z 2003 (now known as R v Hasan 2005) which can be distinguished on the basis that the prior involvement and contact was unrelated to the eventual crime committed and the Court of Appeal were not satisfied with the adequacy of the direction to the jury. However the crown appealed and the matter came before the House of Lords.

There were two areas which were the subject of a direction. One related to the question of whether the accused could of taken evasive action and the second issue was that the jury were not directed on the question of foresight of the sort of crime with which he was charged. The House were satisfied that on the issue of evasive action there had been no mis-direction and the matter was properly explained to the jury. As to the question of foresight the House took the view that there was no requirement to show that the defendant foresaw the type of crime involved. The appeal by the prosecution was allowed and the conviction was reinstated.

 

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House of Lords - Hasan (Respondent) (On Appeal from the Court of ...

 

In this essay we consider that duress is a general defence.

We compare and contrast the case of Shepherd (1987) (defence allowed) with Sharp (1987) (defence denied). Other issues covered are quashing on appeal; distinguishing; and the case of Fitzpatrick (1977) which preceded Sharp (1987).

The essay also looks at the increase in violence and drug related activities; the extension of the principles to drug related cases such as Ali (1995), Flatt (1996), Heath (1999), and Harmer 2001 where the defence of duress failed and looks at the case of  Z 2003. 

 

 

 

 

 


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