Peter Blair | January 27, 2016 | Uncategorized
In Attorney-General v. Whelan of 1934, it was stated that duress is a usable defense because “threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal.” The defendant will have to show evidence of duress and it is up to the prosecution to prove otherwise. However, if the defense is accepted, then this will result in an acquittal. In a case known as R v Coles in 1994, the defendant was charged when it was determined that he committed a number of robberies at building societies. At his trial, he claimed that he was acting under duress. In his defense, he claimed that he had owed money to moneylenders and those same lenders threatened him, his girlfriend, and their child with violence if the money was not repaid. However, the defendant did not win the case. Why? The trial judge made the ruling because the facts did not give rise to the defense. The threats had not been directed at the commission of a particular offense, but just to the repayment of debt. The defendant made an appeal against this ruling, but it was dismissed. Duress is actually a defense that is a bit difficult to prove, and so if you are going to try to make a case surrounding it, there are some things you need to know and understand.
When You Can Use the Defense
So, when can you use duress as a defense? If the defendant has been forced to commit a criminal act by somebody else, then they have a defense. Duress is different from necessity, though they share some similarities. When it comes to necessity, this defense is typically raised when the defendant committed his criminal act as a result of the physical forced of nature. However, duress is raised when the defendant committed his act as a result of threats made by somebody else. Of course, there are some requirements to be met before the defense of duress can be used. Here are those requirements:
- There must have been a real threat. If there was no threat involved, the defendant will not have a case – it is simple. Reasonable belief of being threatened is not enough, either.
- There must have been a threat of either death or serious bodily harm. Modern laws will vary from time to time; a defendant can keep in mind. Sometimes, the courts will accept less than bodily harm threats but it really depends on the circumstances.
- The threat must have been made against another person. You may think that is only applies when the defendant’s family or loved ones has been threatened, but this is not the case. A threat could have been made to a complete stranger and the defense could still be used.
- The threat must be of immediate harm. Threats of future harm are not considered to be enough.
- It must be shown that the defendant could not avoid the threat without committing a crime. If it could have been avoided without a criminal act, the defense will not work.
If you have committed a crime because you were threatened, you may have a duress claim. Duress is a very serious matter involving threats that could hurt the defendant or those around them, which is why the courts treat it so seriously. Find out more about a duress case by calling us at The Law Office of Peter Blair.