![]() To counter these problems, the Law Commission (1993 at paras 33–34) recommended that the burden of proof be shifted to the defendant to establish duress on the balance of probabilities. The prosecution's difficulty was at one time the greater when the issue of duress had not been raised by the defence until the trial was under way. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. This approach has been adopted by the judiciary, most notably by the House of Lords in R v H 2 WLR 335: ĭefences that the accused has been set up and allegations of duress, which used to at one time to be rare, have multiplied. duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for the prosecution to investigate or subsequently to disprove. But this recommendation has not been adopted because it is felt that, in the case of the most serious crimes such as murder, no threat to the defendant, however extreme, should excuse commission of the crime (Elliott 1989). The Law Commission (1977 at paras 2.44–2.46) recognised the logic that, if the defence was going to be allowed at all, it should be applied to all offences. ![]() The rationale of the exception is that the choice is not wholly voluntary. This is an exception to the general principle of criminal law that those who choose to break the law are held responsible for the crimes that they commit. The blackmailer has to justify, not doing the lawful act they threaten, but against a person highly vulnerable to them, the demand of money. Īn obvious case involving "lawful act duress" is blackmail. However, contrasting to cases involving business parties, the threat to do a lawful act will probably be duress if used against a vulnerable person. Just by observing the Laus' behaviour, and consideration of the situation before signing, there was no coercion amounting to a vitiation of consent. The Privy Council advised that the Laus signing the guarantee agreement after the threat of non-completion of the main agreement was only a result of "commercial pressure", not economic duress. In Pao On v Lau Yiu Long the Pao family threatened to not complete a share swap deal aimed at purchasing their company's building unless the Lau family agreed to change a guarantee agreement assuring the Paos would receive the rise in the swapped shares' prices when repurchased. However, threatening to do a lawful act will usually not be illegitimate. A threat is always "illegitimate" if it is to do an unlawful act, such as breaking a contract knowing non-payment may push someone out of business. ![]() Only late in the 20th century was escape allowed if the threat involved illegitimate economic harm. Even though Barton was tough, and would have probably done the payout regardless, he could avoid the agreement. In Barton v Armstrong Mr Armstrong tried to "strong-arm" Mr Barton into paying him a large golden parachute to exit a business by getting his goons to make death threats to Barton's family. So long as a threat is just one of the reasons a person enters an agreement, even if not the main reason, the agreement may be avoided. The common law long allowed a claim if duress was of a physical nature. English unjust enrichment and unconscionability in English lawĭuress involves illegitimate threats.
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