Duress Is Not a Defence to Murder Essay Example | Topics and Well Written Essays - 1000 words

Duress Is Not a Defence to Murder - Essay Example The word ‘duress’ can be explained as a compulsion on an accused by a third party to carry out a murder, or else , he might have witnessed a cruel harm, including death from such a third party.This research essay will analyse how duress cannot be claimed as a defence to murder as held in R v Howe with decided other case laws on the subject.Analysis In Attorney-General v Whelan, 2 it was held that duress is a threat with an instant death or grave body injury to the defendant, and if he refuses to carry out the order of a third party and it should be acknowledged as a validation for action, which would else be regarded as a criminal offense.3 In the earlier times, if duress is claimed as a defence, then the prosecution has the duty to prove beyond doubt that the defendant was not indulged in a crime under duress. However, now, the onus to prove the duress defence claims rests with an accused. Duress cannot be successful in case where there is a claim of peril of lesser har m such as damage to assets or false imprisonment. As held in R v Howe, if there is an instant threat of a serious body injury or death, then defence under duress can be claimed for crimes other than murder and treason.4 Under English law, duress as a defence is not available to attempted murder, murder, or any kind of treason. Hence, the crucial issue was whether duress was a valid defence in murder cases. A defendant may claim duress as an excuse that connotes the defendant had been compelled to act under such a harsh danger that precluding from the crime could not rationally be expected.6 Duress by circumstances and duress by threat are differentiated as to the basis of the threat. Duress per minas (by a threat) starts from a human peril while duress by circumstances involves a peril of natural origin. Both threats can qualify as a valid excuse. In DPP for Northern Ireland v Lynch, 7 Lord Simon observed that duress is just a specific usage of the canon of necessity. In this case, it was held by the Lords that defence of duress was available to a collaborator. In this case, the lords observed that where a defendant is left with two alternatives, which are between the peril of death or grave injury, and if he wantonly put an end to life of an innocent, an ordinary individual should think that one naive human life is as precious as that of his family members and in such event, the defendant cannot argue that he is preferring the least significant of the two evils. Likewise, in R v Gotts,8 it was held that duress is not a justification to an attempted slaughter.9 In normal parlance, the courts would not acknowledge a defence of duress when an abnormal injury is made by the defendant .This is known as a test of proportionality as held in R v Howe.10 Likewise, the duress shield can fail if the prosecution is able to demonstrate that the defendant had a chance to avert the threat from the third party by taking timely help from the police, and if the defendant negle cted to do so, the defence of duress would not be successful as held in R v Hasan.11 Lord Bingham in the R v Hasan case viewed that the peril may be to the defendant or to his family or to a known person of the defendant. Hence, peril against the welfare of the defendant’s family, or to his life or to the life of the person known to the defendant, will be an adequate proof of duress.12 In R v Fitzpatrick,13 it was held that a gang member who had been compelled to indulge in murder could not raise a defence of dur