CRIMINAL LAW REPORT ON DEFENCES OF GENERAL APPLICATION THE LAW COMMISSION - ENGLAND

• NCJ Number: 61218
• Author(s): ANON
• Date Published: 1977
• Length: 73 pages
• Corporate Author: Her Majesty's Stationery Office
• Sale Source: Her Majesty's Stationery Office
• Language: English
• Country: United Kingdom
• Note: LAID BEFORE PARLIAMENT BY THE LORD HIGH CHANCELLOR PURSUANT TO SECTION 3(2) OF THE LAW COMMISSIONS ACT, 1965

Annotation

THE BRITISH LAW COMMISSION RECOMMENDS EXTENTS TO WHICH DURESS, COERCION, NECESSITY, AND ENTRAPMENT CONSTITUTE DEFENSES AGAINST CRIMINAL LIABILITY.

Abstract

RECOMMENDATIONS CONCERNING DURESS AS A CRIMINAL DEFENSE STATE THAT DURESS SHOULD BE RETAINED AS A DEFENSE TO CRIMINAL LIABILITY AND BE RESTATED IN STATUTORY FORM, FOR ALL OFFENSES, INCLLUDING MURDER, WHETHER THE DEFENDANT IS CHARGED AS AN ACCESSORY OR AS THE PERPETRATOR. THE BASIS OF THE DURESS DEFENSE SHOULD BE THAT THE DEFENDANT IS INDUCED BY A THREAT OF HARM TO HIMSELF OR TO ANOTHER TO COMMIT THE OFFENSE CHARGED, AND MUST BELIEVE THAT THE HARM THREATENED IS DEATH OR SERIOUS PERSONAL INJURY, THAT THE THREAT WILL BE CARRIED OUT IMMEDIATELY OR BEFORE ANY OPPORTUNITY TO SEEK PROTECTION, AND THAT IT IS UNAVOIDABLE. THERE SHOULD BE AN EVIDENTIAL BURDEN ON THE DEFENDANT TO ENSURE THAT THERE IS SUFFICIENT EVIDENCE TO RAISE DURESS AS AN ISSUE. IN PROCEEDINGS ON INDICTMENT, THE DEFENDANT SHOULD GIVE NOTICE OF THE INTENTION TO RELY ON THE DURESS DEFENSE; HOWEVER, THE DEFENSE SHOULD BE EXCLUDED WHERE THE DEFENDANT IS VOLUNTARILY AND WITHOUT REASONABLE CAUSE IN A SITUATION WHERE HE KNOWS DURESS WILL BE USED TO INFLUENCE HIM TO COMMIT THE OFFENSE CHARGED. CONCERNING THE DEFENSE OF COERCION, IT IS RECOMMENDED THAT THE COMMON LAW DEFENSE OF COERCION OF A WIFE BY HER HUSBAND BE ABOLISHED. NO GENERAL DEFENSE OF NECESSITY SHOULD BE ALLOWED, AND IF ANY SUCH DEFENSE EXISTS AS COMMON LAW, IT SHOULD BE ABOLISHED. ALTHOUGH NO DEFENSE OF ENTRAPMENT IS RECOMMENDED, FURTHER CONSIDERATION SHOULD BE GIVEN TO THE PENALIZATION OF ANYONE WHO TAKES THE INITIATIVE IN PERSUADING ANOTHER TO COMMIT AN OFFENSE, EVEN THOUGH IT IS INTENDED THAT THE PERSON SO ENTRAPPED SHOULD BE PREVENTED FROM SUCCESSFULLY COMPLETING SUCH OFFENSE. THE APPENDIXES CONTAIN A DRAFT CRIMINAL LIABILITY (DURESS) BILL WITH EXPLANATORY NOTES, A LIST OF THE MEMBERS OF THE LAW COMMISSION'S WORKING PARTY, ORGANIZATIONS AND INDIVIDUALS WHO COMMENTED ON THE REPORT, AND AN EXTRACT FROM THE HOME OFFICE CONSOLIDATED CIRCULAR TO THE POLICE ON CRIME AND KINDRED MATTERS. (RCB)