• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

The essence of the defence of duress by threats is that a defendant would not have committed a crime but for the threats of another person - Consider how and why the courts have limited the availability of the defence.

Extracts from this document...


The essence of the defence of duress by threats is that a defendant would not have committed a crime but for the threats of another person. Consider how and why the courts have limited the availability of the defence. The defence of duress is a common law defence, which has long been recognised as excusing the defendant completely from liability, being a 'true defence'. D argues that a supervening factor should preclude liability. The force or threat of force is employed specifically for the purpose of compelling D to commit a criminal offence. The Australian case of Hurley and Murray (1967) gave a summary of the requirements and restrictions of the defence. D must be threatened with death or serious injury, the threat must be imminent and impending, D's belief in the threat must be reasonable, and a person of 'ordinary firmness' must similarly have yielded to the threat. In addition, D cannot rely on the defence if he has voluntarily exposed himself to the treat, is intoxicated, or he is on a charge of murder or attempted murder. The first condition hare concerns the Nature of the threat. The threat must be 'operating upon the mind of the defendant at the time of the alleged act' Hudson and Taylor (1971). ...read more.


However, individual characteristics that have a direct bearing on the ability of D to resist the threats are to be excluded. Consequently, if D is more pliable, vulnerable, timid or susceptible to threats than a normal person, these characteristics will not be legitimate to invest the ordinary person for the purpose of considering the objective test. In Horne (1994) the judge stated that if the standard for comparison is a person of reasonable firmness, it must be irrelevant for the jury to consider ant characteristics of D, which show that he is not a person of reasonable firmness. 'It would be a contradiction in terms to ask the jury this question and then ask them to take into account, as one of D's characteristics, (mental instability).' Following Flatt, self induced characteristics are not relevant in determining whether a person of ordinary firmness would similarly have succumbed to a threat like the defendant did, therefore this would include voluntary intoxication. A major restriction of duress is that it does not provide a defence where the defendant is on a charge of murder or attempted murder, Howe (1987) and Gotts (1992). These cases confirmed the decision made over a hundred years earlier, in Dudley and Stephens (1884). ...read more.


Restrictions also apply where D associates with people known to be violent criminals such as drug dealers, Baker and Ward (1999), Heath (1999). Due to the restrictions analysed in the defence of Duress, the Law Commission recommended the abolition of the objective test in the first part of the Graham test, which would make it easier for the defendant to gain the defence. However, to compensate for this it has been suggested that the burden of proof be reversed so that D has to prove his honest belief of the threat. However, this has been controversial as it effectively goes against a whole line of authority in the criminal law (Woolmington), and might been seen as too high a price to pay. It has also been suggested that the objective test be abolished in the second stage of the test as well, with the jury being able to take into account all circumstances that affect the gravity of the threat to the defendant, including factors such as suggestibility. This would bring the defence in line with the special defence of provocation following the decision in Smith (2000). This may possible leave the defence of duress open to abuse as a result, however the jury would still have the ultimate decision. Laura Westwood 1 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our GCSE Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related GCSE Law essays

  1. Worlds Apart: Orientalism, Antifeminism, and Heresy in Chaucer's Man of Law's Tale

    lawyer inserts the episode in which the sultaness plots to usurp the governance of her country from her son (II.323-85). And with the account of Custance's wedding night (including the narrator's sententious decree that wives must suffer "in pacience," II.710, their husbands' sexual advances)

  2. Offences against the person act 1861; criticisms and reforms.

    The Government has also included definitions of unclear words such as intent, recklessness and injury. These have been included to make the law easier to understand and to give it greater clarity. The definition of injury will allow the transmission of disease to be included in the offence of intentionally causing serious injury.

  1. The Law Relating to Negotiable Instruments

    The customer then presented a check for $16 payable to Sam Goody to Franklin Bank for certification. After certification, the customer altered the check from $16 to $1,600. (The certification stamp did not show for which the check was certified.) The next day he presented the check to Sam Goody.

  2. Petrol excise should not be excluded

    Today, not only is there no wage increase, we have gone backwards and unemployment is officially 8.6 per cent. However the real figure is close to 12 to 13 per cent. We spend more than $1.5 billion on foreign aid every year and we cannot be sure that this money

  1. Justices of the Peace - Magistrates Courts

    in custody in Bournemouth, compared with just 7% in Weymouth a little further along the coast; for Southampton and Portsmouth, maritime cities similar to each other, the corresponding figures were 18% and 7%. Lambeth magistrates topped the league with 70% remands in custody and only 30% of Crown Court defendants released on bail.

  2. Is Diminished Responsibility Relevant?

    In this condition the delusions and hallucinations are often marked. This is a recognised psychiatric condiition. The psychiatrist went on to say that he believed that there has been an accumulative provocation (emotional battering) over many years of A by his step father .

  1. What is an indictable offence and how is it brought to trial?

    an intention to raise a defence of alibi. The Royal Commission proposed that all defendants who intend to contest the charges against them should be obliged to disclose the substance of their defence in advance of the trial, or alternatively to indicate that they will not be calling any evidence

  2. Hot Hollie vs Gangster Greg's Gang and the Pirated TAT.

    Now the correct lawyer has been chosen and paid for, and the evidence is accessible. The only thing left to decide is whether or not to go ahead with the suit.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work