The issue of duress has come under the spotlight in relation to whether a threat of false imprisonment could suffice for the defence of duress.
Dao & Ors v R.  EWCA Crim 1717 (31 July 2012) considered this point:
The case in essence stated that the defence should not be extended and policy considerations point strongly towards confining the defence of duress to threats of death or serious injury and against extending the defence to treat threats of false imprisonment as sufficing.
The reasons that were given were:
First, there are the difficulties of proof. If once the evidence is sufficient to permit the defence to be raised, the burden is on the prosecution to disprove it to the criminal standard. In practical terms, the defence may consist of little more than assertions, only expanded upon at trial. It would be all too easy to assert a threat of false imprisonment, especially if it is unnecessary for any such assertion to be underpinned by a threat of death or serious injury.
Secondly, it must be right to hesitate before permitting a widening of the defence and therefore it’s more ready availability.
Thirdly, the Court was not persuaded that the other limitations of the defence would furnish a sufficient safeguard against unwarranted over-reliance on the defence, if once broadened to encompass the threat of false imprisonment without the threat of death or serious injury.
Fourthly, confining the defence within its present relatively narrow limits does not preclude doing justice when sentencing, to reflect a defendant's true culpability – even if, on the facts, falling short of the requirements for reliance on duress:
The case then considered whether the Trafficking Convention points towards the extension of the scope of duress.
Art. 26 of the Trafficking Convention says:
“Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so."
In considering this point reference was made to the comments by Hughes Lj in the case of M(L)
“The defence of duress and/or necessity (duress of circumstances) may be in question where an offence has been committed by a trafficked victim whose case that she was coerced into committing it. There is no special modification of the general law relating to these defences…. "
Hughes LJ went on to invite careful attention to Art. 26:
“It is necessary to focus upon what art. 26 does and does not say. It does not say that no trafficked victim should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims. "
In essence the points made were:
i) By its nature, trafficking may give rise to a consideration of whether defences such as duress or duress of circumstances are available.
ii) Art. 26 confers no blanket immunity and must be applied on a fact sensitive basis. Well established principles still apply
While the law remains unaltered, the threat of violence may be reinforced by false imprisonment and it is important to be careful as to whether other applications need to be made bearing Article 26 in mind.
If you have been convicted of an offence and wish to obtain advice in respect of an appeal please do contact our Criminal Appeal team on 01616 966 229.
By criminal appeals partner, Correna Platt