Exam qusetion Essay Example | Topics and Well Written Essays - 750 words

Exam qusetion - Essay Example Laws in common law however can be repealed and amended by parliament. Duress is a defence against all crimes with the exception of murder and attempted murder. The prevailing circumstances matter and determine when duress can be used to exonerate one of their wrongdoings. The threat must: be to death or serious injury, be directed against the defendant or his immediate family or someone close to him, neither emanate from actions the defendant voluntarily did nor circumstances that the defendant voluntarily put himself in and inescapable by any reasonable means. The crime against which one seeks to use duress as a defence must be a directly caused by the threats to the person. The above criteria present a lot of problems to the defence of duress. First is the subjective nature of most of the criteria. The perception of the actor is key to the actions they commit and what accounts as serious injury to one person may not be so to another. Levels of fortitude, self-sacrifice, altruism and perception of danger vary from individual to individual and have no reasonable measure or an objective benchmark. The requirement that the threat be of serious injury is of essentially ambiguous and thus may be valid or invalid depending on the individual under duress. This ambiguity and subjectivity also apply most of the other criteria and thus denying the defence of duress to any and all individuals without appealing to the prevailing circumstances is clearly unfair. The courts do not recognise duress if the court determines that the harm done is superior to the perception of harm to be caused by threats and this is tested in two ways; questioning whether the defendant acted as they did because they honestly believed the harm of the threat to be serious and questioning whether a reasonable person of typical courage and having similar characteristics to the defendant would have acted in the same manner. Clearly these two criteria do not