R v Bowen [1996] 2 CAR 157

Defendant, of low intelligence, obtained services by deception after threats against his family and property made by two men if he refused to do so.

The CA said that the only relevant characteristics to defence of duress (i.e. section referring to the person “sharing Defendant’s characteristics) were age and sex. No accommodation was made for low intelligence.

CA say case law declines to change the defence because someone may have characteristics, short of recognised mental illness, which make them feel more vulnerable or neurotic about threats - the “person of reasonable firmness” test applies. “Sharing characteristics of Defendant” only refers to age, sex, pregnancy (due to concern for child) and psychiatric illness or physical disability.

• This objective test is bad because someone who harms another based on a totally sincere belief, admittedly because of mental frailties, and is therefore acting on the assumption that they have no other option, will still be punished.

• The aim of the test might be to make someone seriously consider whether harming another innocent person, but this is naïve since people in these circumstances are unlikely to be guided by the law (as opposed to acting to save themselves).

• Furthermore a requirement of an honestly held belief (as in self-defence) would ensure that people who harm others on the basis of merely “suspecting” danger to themselves would not be acquitted.