Critically examine the weight of the arguements both for and against the reinstatement of the defence of Duress for a charge of Murder.
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Critically examine the weight of the arguements both for and against the reinstatement of the defence of Duress for a charge of Murder. For many years the common law has recognised a defence of duress per minas (threats through a third party). The defendant is excused liability for particular crimes due to the fact that he was forced by some third party to choose between either committing the criminal offence specified by that third party or facing that third party's threat of grievous bodily harm or death if his demands are not met. Though the defendant does not have to prove duress, s/he must adduce evidence sufficient to raise the issue in order for it to be left to the jury. The burden of disproving it beyond reasonable doubt rests on the prosecution.
Duress as a defence is a concession to human weakness 2. The law should expect an ordinary person to act heroicly when threatened and be prepared to sacrifice his own life as opposed to taking an innocent life. The Law Commission (1992) and (1993) proposed that the defence of duress of circumstances be available to all crimes including murder. The Draft Criminal Law Bill, 1993, (Law Com. No. 218), clause 26 provides: "(1) No act of a person constitutes an offence if the act is done under duress of circumstances. (2) A person does an act under duress of circumstances if- (a) he does it because he knows or believes that it is immediately necessary to avoid death or serious injury to himself or another, and (b) the danger that he knows or believes to exist is such that in all the circumstances (including any of his personal characteristics that affect its gravity)
The defendant obviously has the mens rea to commit the offence and is also treated as acting voluntarily. Duress then is a true defence where the accused is raising issues over and above the elements of the offence itself which excuse the offence. From the position of moral retribution, faced with the choice of two evils, the accused is not to be blamed for choosing to break the law - s/he is less morally blameworthy that a person who exercises free choice. Equally from the position of deterrence, if a person of reasonable strength of character would not have resisted these threats, then it is difficult to see that punishing this defendant would deter anyone else or encourage resistance(?). However it can be argued that this 'concession to human frailty' should not be regarded as a defence but as a factor in mitigation of sentence - after all provocation operates in this way in relation to all crimes except murder.
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