Duress Law: Historical Evolution And Modern Applications

Duress, or coercion, is a legal term referring to a situation where an individual is compelled to act against their wishes due to threats, violence, or other forms of pressure. Duress is often used as a defence in criminal law, where a defendant may argue that they committed a crime as a result of extreme and unlawful pressure. This defence, however, is not typically applicable in cases of murder or other serious crimes. The concept of duress also extends to civil law, particularly in contract law and trusts law. In this context, duress refers to illegitimate threats or economic pressure that coerce an individual into entering a contract. To establish duress, there must be an imminent threat of serious harm, a reasonable fear of the threat being carried out, and no reasonable opportunity to escape the situation.

Duress as a defence in criminal law

For duress to qualify as a defence, four requirements must be met:

• The threat must be of serious bodily harm or death.
• The threatened harm must be greater than the harm caused by the crime.
• The threat must be immediate and inescapable.
• The defendant must not be at fault for becoming involved in the situation that led to the threat.

The defence of duress is typically allowed for a wide variety of crimes, but it cannot be raised when murder charges have been brought. This is because it is generally believed that a person whose life is threatened if they do not kill another person should sacrifice their own life rather than take the life of an innocent individual. In addition, duress is generally not allowed as a defence for malum in se offences, such as sexual assault.

It is also important to note that the defence of duress is not available to defendants who voluntarily expose themselves to illegal compulsion. In other words, if a defendant joins a criminal enterprise knowing that it involves violent people, they cannot later rely on the violence threatened as duress.

Duress is often confused with the defence of necessity. Both involve a defendant being forced to commit a crime to avoid serious harm, and the main response to either defence is that the defendant had another option to avert the harm. However, they are technically separate defences. Duress involves a defendant committing a crime because someone directly forced them to do it, while necessity involves a choice between two bad alternatives that arose from the circumstances rather than the actions of a specific person.

Duress in contract law

To prove duress, the burden of proof lies with the party claiming it. They must establish that they agreed to a contract because of a threat of illegitimate pressure and would not have signed the contract if the threat did not exist. Evidence of duress often includes documentation of threats, relevant communications, and witness statements.

If a court determines that a contract was signed under duress, that contract is rendered null and void as if it was never signed. This is because any agreement made by a person under duress is invalid in the eyes of the law.

Physical duress

To establish physical duress, certain criteria must be met. Firstly, there must be evidence of an immediate and direct threat of physical harm to the individual or someone closely associated with them. The severity of the threat should be such that a reasonable person with similar characteristics would be unable to resist. Courts consider factors such as age, sex, and physical condition when evaluating the extent of physical duress.

In the context of criminal law, physical duress can be raised as a defence, acknowledging that the accused may have lacked the necessary intent to commit the crime due to coercion. However, it is important to note that duress is not a defence for certain serious crimes like murder or attempted murder.

In contract law, physical duress can be a vitiating factor, impacting the validity of a contract. If a party can prove that they entered into a contract under physical duress, they may be entitled to legal remedies such as rescission, rendering the contract void.

The distinction between physical duress and other forms, such as economic or psychological duress, lies in the nature of the threat. Physical duress involves explicit threats or use of force, while economic and psychological duress centre on financial or emotional pressure respectively.

Psychological duress

To prove psychological duress, one must demonstrate that they were coerced into acting against their will as a result of illegitimate psychological pressure, threats, or unlawful actions. Evidence may include records of threatening behaviour, such as texts, emails, or voice recordings, as well as witness testimonies. It is also important to show that there were no reasonable alternatives to submitting to the pressure and that it significantly influenced the decision to act.

In the context of contract law, psychological duress can render a contract voidable, as it undermines the essential element of genuine consent. In such cases, the affected party may be entitled to legal remedies, such as rescission of the contract, returning the parties to their pre-contractual positions.

Economic duress

The necessary ingredients for a successful economic duress claim are:

• Pressure which is illegitimate, i.e., there is no commercial or similar justification. The pressure often takes the form of a threat.
• The pressure must be a significant cause inducing the innocent party to enter into the contract.
• The practical effect of the pressure is that there is compulsion on, or a lack of practical choice or realistic alternative for, the innocent party.

In determining whether there has been illegitimate pressure, the courts take into account a range of factors, including whether:

• There has been an actual or threatened breach of contract.
• The party exerting the pressure has acted in good or bad faith.
• The innocent party had any realistic practical alternative but to submit to the pressure.
• The innocent party protested at the time.
• The innocent party affirmed and sought to rely on the contract.

The doctrine of economic duress entitles a claimant to rescind a contract where:

• There is a threat (or pressure exerted) by the defendant which is illegitimate.
• That illegitimate threat (or pressure) caused the claimant to enter into the contract.
• The claimant had no reasonable alternative to giving in to the threat (or pressure).

The Supreme Court has affirmed the existence of a doctrine of lawful act economic duress, but this doctrine only applies in rare circumstances. The court emphasised that the doctrine of lawful act economic duress will be applied narrowly and that it only applies where the threatening party behaves in an unconscionable way.

Frequently asked questions