A person who knowingly intent to commit a crime cannot claim defence of duress
A person who knowingly joins a gang for the express purpose of committing a crime but has second thoughts about actually committing it cannot plead the legal defence of duress. If because of his second thoughts, his mates in the gang threaten him with bodily harm if he doesn’t push through with his part in the criminal conspiracy, he cannot be considered to be under duress.
In the first place, he joined the gang voluntarily. He knew that the gang existed to commit crime. He conspired with the other members of the gang to commit a specific crime. He shared the group’s criminal intent. He may have wavered in his resolve but he remained a member of the gang and he continued to commit the crime. The threats his gang mates made against him did not impose upon him the gang’s collective will but only served to solidify his wavering resolve. It cannot be said of him that he committed the crime because he was under a serious threat of bodily harm or injury.
When the gang mates threatened him, they did not threaten him so as to put him in fear. They threatened him so that he wouldn’t change his mind about a choice he had previously made to commit the crime with them. The gang member who was having second thoughts had control of his will unlike a person who is genuinely under duress who cannot exercise his own will.
Also, the threat must be looming over him such that the accused could expect the threat to be carried out at any time. The threat must be continuing leaving the accused without any room or opportunity for escape. Here, the accused gang member was not threatened until just about they were already to put into effect the criminal conspiracy they had already agreed upon.
The threat stopped once the gang member finally decided to carry out what he had agreed to do with the other gang members. For these reasons, the gang member in this example cannot successfully plead the legal defence of duress.
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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.