Defence Of Duress Research Articles

Duress, Self-Defense and Necessity in Israeli Law

The defenses of Duress, Self-Defense (or private defense) and Necessity are today set forth in sections 21, 22 and 22A, respectively, of the Israel Penal Law, 1977. However, in order to understand these defenses fully, it is necessary to go back to the provisions of the Criminal Code Ordinance, 1936, wherein the ruling British Mandatory authorities replaced the Ottoman Penal Law which had prevailed in Palestine before the Mandate. For, its name to the contrary notwithstanding, the 1977 Penal Law was not primarily an original Israeli enactment. Rather, it was in considerable measure merely a Hebrew translation of the original Criminal Code Ordinance. This is especially the case in connection with the Ordinance's General Part, which includes the defenses that concern us here. It was only in 1992 that the Knesset enacted original Israeli legislation concerning these defenses.

Murder and the Availability of the Defence of Duress in the Criminal Law

Murder and the Availability of the Defence of Duress in the Criminal Law

Reiterating the Criminal Code

In February 1992, the Law Comrnission issued a Consultation Paper, including a draft Bill, on the criminal law. 1 The Paper contains three main elements. First, it proposes a comprehensive reform of the present law on non-fatal offences against the person. There would be new offences of intentionally causing serious injury; recklessly causing serious injury; and intentionally or recklessly causing injury; together with renderings of the present crimes of battery and assault. There would also be related offences of kidnapping, unlawful detention and such like, along fairly familiar lines. The Paper also proposes statutory definitions of 'intention' and 'recklessness,'2 but only for the purposes of these offences and not for general application. Second, the Paper proposes a statutory statement of certain general principles of the criminal law. These include supervening fault, transferred fault and defences, and the defences of duress by threats, duress of circumstances and private and public defence. These proposals largely follow the present law, though with adjustments as to details. They would be of general application and would not be confined to the new offences against the person. Third, the Paper proposes a provision on intoxication, but only by way of applying the present rules about drunken unconsciousness and drunken mistakes to the offences and defences contained in the Paper's other two elements.

Duress and criminal responsibility

While the plea of duress is generally accepted as a defense against criminal prosecution, the reasons why it exonerates are subject to dispute and disagreement. Duress is not easily recognizable as either an excusing or justifying condition. Additionally, duress is generally not permitted as a defense against criminal homicide, though some American jurisdictions allow the defense in felony-murder cases. In this paper, I present an argument for how and why the presence of duress can defeat a finding of criminal responsibility. This is intended to establish the philosophical foundation for the legal acceptability of the duress defense, even though I conclude that the defense does not qualify as either an excuse or a justification. I also argue that the duress defense should be allowed in cases of homicide.

Killing Under Duress

ABSTRACT The House of Lords ruled in R v Howe (1987) that Duress is not a defence to murder in English law. Some of the central arguments rested on a simple view about the nature of duress and the way in which duress is relevant in moral evaluation. This paper discusses legal and non‐legal senses of duress, and argues that duress can be relevant to moral evaluation in a number of different ways. Some acts under duress are morally justified (here the defence of Duress is like that of Necessity) and some others are excusable; some excuses deny full responsibility on the part of the agent (here Duress is more like Provocation) and others do not. The judicial description of duress in Howe is too specific to notice this, with the consequence that some of the central claims made in dismissing Duress as a defence to murder are confused.

Duress and the Criminal Law: Another About Turn by the House of Lords

In the field of criminal law we should be used to the House of Lords changing its mind. In the course of the past three years the House has fundamentally altered its view on the meaning of intention, on the relationship between statutory and common law conspiracy and on the law of impossible attempts. Now we have another about turn. In R. v. Howe and Bannister the House of Lords has unanimously decided that duress can never be a defence to murder. Yet elsewhere in the criminal law (with the exception of some forms of treason) duress operates as a complete defence, leading to acquittal if raised successfully. In making murder an exception to this general rule the House, using its power under the Practice Statement of 1966, has departed from its previous decision in D.P.P. for Northern Ireland v. Lynch which allowed the defence of duress to be raised by principals in the second degree to murder. The Lynch decision, which had stood as part of the common law for some twelve years, is now consigned to the legal scrapheap.

Fedorenko v. United States: War Crimes, the Defense of Duress, and American Nationality Law

Fedorenko v. United States: War Crimes, the Defense of Duress, and American Nationality Law