History of duress as a defence | For many years it was possible to regard the defence of duress as something of an antiquarian curiosity, with little practical application. Sir James Stephen, with his immense experience, never knew or heard of the defence being advanced, save in the case of married women, and could find only two reported cases: A History of the Criminal Law of England (1883), vol II, p 106. Edwards, drawing attention to the absence of satisfactory modern authority, inferred that the defence must be very rare: "Compulsion, Coercion and Criminal Responsibility" (1951) 14 MLR 297. Professor Hart described duress as a defence of which little is heard: Punishment and Responsibility (1960), p 16. This has changed. As Dennis correctly observed in "Duress, Murder and Criminal Responsibility" (1980) 96 LQR 208, "In recent years duress has become a popular plea in answer to a criminal charge." |
The essential elements for a defence of Duress are: | * a threat from another person * of serious personal violence * against the accused or another person * instructing the accused to commit a crime * which causes the accused to commit any crime but not murder or attempted murder * another person of reasonable firmness would have acted the same * the threat was not from a fellow member of a violent gang |
Attorney-General v Whelan  Murnaghan J (Irish CCA) | Duress is a defence 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 bears the burden of introducing evidence of duress and it is then up to the prosecution to prove beyond reasonable doubt that the defendant was not acting under duress. If a defence is established it will result in complete acquittal.
Although this case refers to "justification" it is submitted that as a...