Duress and False Imprisonment: The Constituent Elements of the Threat
| Author | Alan Reed |
| DOI | 10.1350/jcla.2012.76.5.377 |
| Published date | 01 October 2012 |
| Date | 01 October 2012 |
| Subject Matter | Court of Appeal |
so regarded. If the defendant is dishonest in that sense, it is irrelevant
that he did not himself regard the conduct as dishonest.
In summary, it seems that the elements of conspiracy to defraud may
be delineated more by mud than by crystal. The offence remains as a
catch-all loophole of uncertain ambit, but predicated upon economic
prejudice and knowing dishonesty. It has survived the replacement of
legislative deception offences with fraud provisions (see Fraud Act 2006)
and implementation of criminalised lying. It remains a viable prose-
cutorial option and, as revealed in the present case, is predicated upon
sufficiency of evidence related to common purpose.
Alan Reed
Duress and False Imprisonment: The Constituent
Elements of the Threat
R vNguyen [2012] EWCA Crim 1717
Keywords Duress; Nature of threat; False imprisonment; Policy; Im-
plications; Ambit of exculpatory defences
The defendant had been convicted of cultivating cannabis and possess-
ing criminal property. It was contended, however, that the trial judge
had misdirected the jury on the constituent elements of the defence of
duress; he should have directed them that the operative threat to the
individual could be one of unjustified imprisonment as well as death and
serious injury. The argument presented was to the effect that it was
logical to include the threat of false imprisonment, but arbitrary and
anomalous to exclude it; the true cut-off was between threats to the
person and threats to property. Extending the defence in this way would
arguably not open the floodgates or offend public policy; other strict
limitations on the defence would remain, including, in particular, the
requirement that a reasonable person would have been driven to act in
the way the defendant in question had acted.
The prosecution submitted that it was a prerequisite of the defence of
duress that there must have been the threat of death or serious injury.
False imprisonment without such a threat would not suffice. A judicial
bulwark to nebulous exculpation needed to be presented, and there
were good policy reasons for confining the defence within narrow
bounds. The defence of duress was particularly difficult for the prosecu-
tion to investigate and disprove beyond reasonable doubt. Moreover, it
was contended that whatever the precise limits of the defence of duress,
and even assuming that it extended to false imprisonment, on the facts
of the present case, the conviction was in any event safe. The factual
picture presented was not one of being subject to false imprisonment:
the appellant had some of her possessions within the premises, includ-
ing clothes and a mobile telephone; the kitchen area was stacked with
food and drink; a key to the premises was found in the living area; and
Duress and False Imprisonment: The Constituent Elements of the Threat
377
To continue reading
Request your trial