Partielo | R. v Shepherd

Définition

probation

When someone is on probation, that means they have been convicted of or pleaded guilty to a crime but are given an alternative to incarceration. In other words, instead of serving their sentence in jail or prison, they are allowed to remain out of custody.

Duress

Duress refers to a situation where one person makes unlawful threats or otherwise engages in coercive behavior that causes another person to commit acts that they would otherwise not commit.

Criminal enterprise

Criminal enterprise is a group of individuals with an identified hierarchy, or comparable structure, engaged in significant criminal activity.

Coercion

Coercion is "the use of express or implied threats of violence or reprisal (as discharge from employment) or other intimidating behavior that puts a person in immediate fear of the consequences in order to compel that person to act against his or her will." Section 1581 prohibits using force, the threat of force, or the threat of legal coercion to compel a person to work against his/her will.

Penal

Penal is used primarily as a descriptive term relating to punishments or crimes.

Conspiracy

occurs when two or more persons agree to commit a crime-an essential feature for committing organized crime. One purpose of the conspiracy offence is to extend liability "backwards" by criminalizing the planning (or agreement) stage of a criminal offence.

Facts : The defendant entered a shop with a view to stealing boxes of goods from it. When charged with burglary, the defendant raised the defence of duress on the basis that whilst he had willingly participated in the crime initially, he subsequently lost his nerve. However, the defendant stated that he felt compelled to continue to contribute to the burglary because he and his family had been threatened by violence by one of the other participating parties.

At first instance, it was held that the defence of duress was not available on these facts because the defendant had voluntarily participated in the criminal act. The issue for the Court of Appeal was whether the subsequent change of mind was sufficient to allow the defence to be raised at that stage.

The problem is whether it is possible for an individual to defend himself by pleading duress when he seemed to voluntary intend to commit the act.

Decision :

The defence of duress is available where threats of violence to the defendant or those close to the defendant exist to such an extent that the defendant feels compelled to contribute to the crime and it would therefore, be unjust to find them criminally liable for their actions (DPP for Northern Ireland v Lynch [1975] AC 653). It was held here, that the defence would be available following voluntary involvement in criminal activity if, at the time of the voluntary involvement, violence was not contemplated. Once the defendant changes their mind and wishes to cease involvement, the defence will be available if, at that stage, they are aware of the threat of violence. In other words, the defence will not apply where there is a threat of violence initially, but at this stage the defendant voluntarily contributes and later changes their mind.

The court considered the direction to be given on a defence of duress: ‘ . . .. where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.’ The jury should have been (but were not) directed to consider ‘whether the appellant could be said to have taken the risk of P’s violence simply by joining a shoplifting gang of which he [P] was a member.