Duress Evaluation
Imminent
The case of Hussain, where the Ds hijacked a plane to escape religious persecution,
established that a threat need not be ‘immediate’ but must be ‘imminent’ in the
sense that it is hanging over the defendant.
Arguably, this lacks clarity, and suggests a new definition is needed.
However, this blanket term can be moulded to fit each individual case, suggesting
that this ambiguity is needed.
Not Available for Murder
Moral
The law on duress is arguably too harsh. This is reflected by the fact that the defence
is not available for murder, as confirmed in R v Howe, which overruled the DPP v
Lynch.
Lord Hailsham thought that the ordinary person should be capable of heroism if she
is asked to take an innocent life rather than sacrifice her own. This is even in cases
where a mother is being asked to sacrifice her children.
Lynch stated that the law would be inhumane if it did not recognise the ‘powerful
and natural’ instinct for self-preservation.
Therefore, the fact that the law now contradicts Lynch can be deemed problematic.
Far Removed
The overruling of Lynch also means duress is no longer a defence for a secondary
party on a charge of murder.
A problem with this is that a defendant can be guilty of murder even if their
involvement was far removed from the actual killing. For example, if they were
simply a getaway driver.
From this, it is suggested that the law is too harsh and needs to be reversed in order
to align, once again, with the principles set out in Lynch.
Age
The age and/or susceptibility of a defendant to duress are also ignored as shown by
the case of R v Wilson (2007). The Court of Appeal in that case accepted that there
might be grounds for criticising the rule that did not allow a 13-year-old boy any
defence to a charge of murder, even though he was only doing what his father told
him when he was too frightened to refuse to obey.
Crimes with Similar MR
Imminent
The case of Hussain, where the Ds hijacked a plane to escape religious persecution,
established that a threat need not be ‘immediate’ but must be ‘imminent’ in the
sense that it is hanging over the defendant.
Arguably, this lacks clarity, and suggests a new definition is needed.
However, this blanket term can be moulded to fit each individual case, suggesting
that this ambiguity is needed.
Not Available for Murder
Moral
The law on duress is arguably too harsh. This is reflected by the fact that the defence
is not available for murder, as confirmed in R v Howe, which overruled the DPP v
Lynch.
Lord Hailsham thought that the ordinary person should be capable of heroism if she
is asked to take an innocent life rather than sacrifice her own. This is even in cases
where a mother is being asked to sacrifice her children.
Lynch stated that the law would be inhumane if it did not recognise the ‘powerful
and natural’ instinct for self-preservation.
Therefore, the fact that the law now contradicts Lynch can be deemed problematic.
Far Removed
The overruling of Lynch also means duress is no longer a defence for a secondary
party on a charge of murder.
A problem with this is that a defendant can be guilty of murder even if their
involvement was far removed from the actual killing. For example, if they were
simply a getaway driver.
From this, it is suggested that the law is too harsh and needs to be reversed in order
to align, once again, with the principles set out in Lynch.
Age
The age and/or susceptibility of a defendant to duress are also ignored as shown by
the case of R v Wilson (2007). The Court of Appeal in that case accepted that there
might be grounds for criticising the rule that did not allow a 13-year-old boy any
defence to a charge of murder, even though he was only doing what his father told
him when he was too frightened to refuse to obey.
Crimes with Similar MR
