A new duress defence and the theory of understandable compliance.

Duress is a common law defence that has existed since at least the 13th century. It was initially used for the most heinous crime, treason, when a defendant was forced to act against his will. It has since developed to become heavily restricted and excluded to murder. This thesis considers the theoretical underpinnings of duress and questions why an excusatory defence duress does not operate to excuse all crimes, especially as no aims of sentencing are served by punishing the defendant. By researching the historical foundations of duress, considering reform proposals and drawing comparisons to other jurisdictions, it will be concluded that there is no basis for denying duress to murder and that allowing the defence to murder operates successfully in other common law jurisdictions. A new underpinning theory of duress, called understandable compliance, will be proposed. This will acknowledge that when the defendant is faced with a threat of death the law should not expect him to act heroically (or even reasonably), but instead afford a defence when the defendant’s actions are a normatively understandable compliance to the threat. This new duress defence will provide the defendant with a full acquittal, except for when the defendant has committed murder or manslaughter. When the defendant has killed another his right to justice must be weighed against the sanctity of human life and the need to declare killing as unacceptable. Instead of the current position, which would convict the defendant as a murderer or manslaughterer, the defendant would be convicted of a lesser offence of killing under duress with a restricted maximum sentence. This will result in those deserving of compassion having a defence of duress available to them, discretion in sentencing for murder, and the correct label for those convicted when killing under duress