If the accused’s action were caused by threats, the defence of duress may be available. Duress may make the offence involuntary.
The threats must generally be of serious violence, serious injury or death. It may be one of immediate death or personal violence which is so great as to overbear the ordinary powers of human resistance. However, in principle, there is no limitation of the potential threats which may qualify for duress.
The threats must be such as would overbear the will of a reasonable person. It is not clear whether and to what extent regard may be had to the particular weakness of the individual accused.
The person must have a reasonable level of fortitude. It has been suggested that the object of test should be applied, with reference to a person with the same age, gender, and physical health as the accused.
The threat must be immediate and relate to injury or death. Threats to property or threats to expose a person to ridicule or defamation are insufficient. Generally, there would be some kind of emergency so that the person threatened the accused has no alternative.
Some courts have taken a view that the threat to the defendant, his family or another for whom he is responsible only will suffice for the defence of duress to succeed. Other courts have taken a view that this is unduly restrictive and that there are circumstances where threats to third parties may be sufficient.
The threat must be imminent and immediate. It must be capable of being carried out within a short time. It is not enough that threatening circumstances may exist at a later date or that there may be consequences in terms of retaliation in the very near future.
It must be shown that the accused will was overborne by the threats. When the threats cease, so does the duress. A person may be obliged to take steps to cease the unlawful behaviour once the duress ceases. However in many cases, may be reasonable, to wait a certain time.
The Irish courts held that if an individual has the opportunity to escape from duress, but fails to do so, the defence may not be available.
If a person voluntarily exposes himself to threats and dangerous situations, he may be denied the defence of duress. Where a person is a member of a gang and participates out of fear of reprisal, he is unlikely to be able to avail of a defence of duress. If a reasonable person is aware of the risk that such threats or compulsion may arise, the defence will not be available. Otherwise the defence of duress would turn into a charter for gang leaders and terrorists.
The English courts have held that duress is not available as a defence to murder, attempted murder or some forms of treason. The Irish courts have stated the defence of duress is not available in relation to murder.
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