Duress and necessity

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Duress and necessity
  • Duress by threats
  • Excluded defendants
  • Necessity and duress of circumstance

Duress and necessity

Duress by threats

Duress by threats provides a complete defence to a charge of any offence other than murder, attempted murder and potentially treason. The defence arises where the defendant commits the offence with the relevant intention but is induced to act by a threat made by another person, or the defendant reasonably believes a threat has been made, to the effect that, unless the defendant commits the offence with which he is charged, then he or a third person will be harmed. The evidence for a defence of duress must be raised by the defendant. Once raised, the burden is then on the prosecution to disprove the assertion.

The defence involves both a subjective and an objective test which the jury must determine following directions from the judge. The test is:

  1. was the defendant, or might he have been, impelled to act as he did because as a result of what he reasonably believed another person had said or done he had good cause to fear that otherwise death or serious physical injury would result to him or a person for whom he would reasonably regard himself as responsible, and

  2. would a sober person of reasonable firmness, sharing the characteristics of the defendant, have responded to the situation by acting as the defendant did?

Where the evidence in the proceedings is sufficient to raise

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