What is duress?
I point a gun at your head, say that it's loaded and further delve into the fact that if you don't transfer the money from so and so's account, which is a fraud, I'll blow your motherfucking head to a billion pieces then I'll probably go after your children.
That, my friends, is a circumstance of duress.
There's 2 types of duress.
(a) Duress of Circumstance
(b) Duress of Necessity
(a) is when the duress is basically the event occuring in the above example, where there is a definite and apparent fear of death or bodily harm whether on the defendent or on another and can only be accepted in the objective view of the 'reasonable man'. Another point to take into consideration is the time taken for committing the crime as a direct and immidiate response to the threat, therefore, causing a lapsed time would nullify the defence.
The locus standi for duress of necessity would be the case of R v Martin [1989] where the defendant had driven his stepson to work although he was disqualified from driving. He claimed that he had done this because his wife had threatened to commit suicide unless he did so, as the boy was in danger of losing his job if he was late. The wife had suicidal tendencies and a doctor stated that it was likely that she would have carried out her threat. The Court of Appeal allowed the defendant's appeal against his conviction, as the defence should have been left to the jury.
At the point where time of crime being committed is concerned, the case of R v Coles [1994] where At the defendant's trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him and his girlfriend and child. The trial judge ruled that no defence of duress was open to the defendant. Dismissing the defendant's appeal against conviction, the Court of Appeal held that the defence of duress by threats was not open to the defendant because the threateners had not nominated the offences which he had committed. Nor, the Court held, was the defence of duress of circumstances available. For the defendant to rely on the defence of duress of circumstances, there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the ommission of the offence had been a spontaneous reaction to the prospect of death or serious injury. Note: the connection between the threat and the offences was not as close and immediate as in Willer, Conway and Martin, where the offences had been virtually a spontaneous reaction to the physical arising.
(b) is where, as the term suggests, the accused is forced by a mere necessity to commit a crime. This is not available as a defence to a criminal charge simply because. With the general rule, however, there are always exceptions. For this being that services such as the police cars, fire engines and ambulances are exempt from being charged with things such as running the red light.
The locus standi for duress off necessity is R v. Dudley & Stevens [1884] where 3 members of a crew were cast adrift as they were shipwrecked and the defendants had decided that if they were to survive, they would have to kill and live on the already 'weak and dying' cabin boy, as they had simply put it. The defendants were sentenced to death, but this was commuted to six months' imprisonment.
As quoted from Lord Denning on justifying the rule:
"… if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass … . If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry."
Another case where duress of necessity is taken into account is R v Bourne [1939] where a gynaecologyst had performed an abortion on a young girl for fear that if he did not, both would die. The act was given concent by her parents and herself. He was found not guilty for 'unlawfully procuring a miscarriage' following a direction from the trial judge to the jury that the defendant did not act "unlawfully" for the purposes of s58 Offences Against the Person Act 1861, where he acted in good faith, in the exercise of his clinical judgement.
Currently, duress is not a viable defence for murder but is thoroughly discussed in the Law Commission Report Number 177.
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See how my brain has fluctuated to the extent as to write note in my blog?
*sigh*
I need to go print out some stuff...
*runs off at 10pm and returns smugly at 10:15pm*
Tomorrow:
9am - Contract Lecture
11am - Academic Wing meeting
1:30pm - Consti Tuts
3pm - Crim tuts: Duress
I must recommend James Morrison to your ears. He is very soothing to the savage beast. hahaha!!! Truly! I shit you not. He brought back good music. A'la funk.
I'm compiling some happy/soothing songs for dear Ezzy... she's not feeling too awesome.
Cheers!
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