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Evaluation of Duress (Strengths (Law reflects moral principles- those who…
Evaluation of Duress
Strengths
Law reflects moral principles- those who are not at fault should not be punished Lynch: The law would be inhumane if it did not recognise the 'powerful and natural' instinct for self preservation- Lord Morris.
The defence is not too easy to establish as if the defendent fails to resist a threat that others would have then the defence will not be available.
There must be a nominated crime Cole, this ensures there is a causal link between the crime committed and the threat.
The reasonable belief requirement Cairns ensures the defence is not too easily established. Likewise, it allows the defence when the defendant is mistaken, as long as the mistake is a reasonable one.
The threats must be of death or seious injury, this limits the availability of the defence. Valderama-Vega
The threats are no longer limited to the defendent or his friends and family. It is now broadened to include those in a close relationship or whom the defendant can reasonable be regarded to be responsible for Wright; Hasan
The requirement of an 'immediate' or 'almost immediate' threat Hasan ensures the defence is not available where the defendant has an opportunity to take evasive action. The decision in Hudson& Taylor has been criticised and overtaken by a more restriccctive approach.
It is not available to those who associate with criminals or those who might compel them to commit a crime. If the defendent 'knows' or 'ought to have known' the defence will not be available Hasan This reflects public policy. Hasan: The criminal law should be slow to excuse those who associate with known criminals- Lord Bingham.
The objective element Bowen is crucial to the defence. Lynch: It is unrealistic to expect standards of heroism from the defendant where a reasonable resolute person would have done exactly the same as the defendant when the threat was made.
In Hasan, Lord Bingham approved Graham saying the belief must be genuine and reasonable
Reflects moral values and the interests of justice. The defendant should not be liable where they were forced by the circumstances to commit an offence,
Criticisms
The defence is not availbale in murder cases. This places an expectaion on ordinary persons to act in an extraordinary manner and lay down their own/ their families lives rather than kill another.
It is illogical to not allow the defence to attempted murder but to permit to a chargw under section18 OAPA 1861. So if the defendant shot at the victim and missed, the defence wont be available but if they caused GBH. Critics argue the availability of the defence depends on the charge brought by the CPS rather than the level of harm actually formed.
It is not in the public interest to allow the defence to murder cases. Abbott: it would be a charter for terrorists, gang leaders and kidnappers- Lord Salmon. Gotts: The defence is easy to raise and difficult to dispove- Lord Lane. Moreover it treats murder and attempted murder in thre same way, the consistency is a strength Ghotts.
The low intelligence or vunerability are not characteristics which can be shared with the reasonable person. This may disadvantage such defendants and can be seen as too harsh.
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Proposals for reform
Duress should be a complete defence to murder. Law Commission 2006 report on murder and manslaughter concluded it should be a defence to 1st degree murder, 2nd degree murder and manslaughter. It would not permit the defence where a person knew or ought to have known of the risk of being subjected to any compulsion by threats of vioence (reflecting the HoL in R v Z 2005) The LC argues there is a moral argument for duress being available for murder.
The Law Commission rejected the idea of distinguishing between persons who act to save their own life and those who act to save the life of a third person.
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