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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.

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Introduction

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.

Middle

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.

Conclusion

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.

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