The question of the coercion of an individual into committing a crime is examined by the Law Reform Commission in a consultation paper to be published today.
The paper is part of an ongoing review of the criminal law, and a consultation paper on the defence of provocation in homicide cases was published in 2003.
At the moment a person accused of committing a crime can defend themselves on the grounds of duress or necessity. This applies where he or she is coerced into committing the crime by serious threat or dire circumstances.
For example, if a person is accused of possessing a firearm or stolen goods, they might offer an explanation that they or a close family member were under threat from another person.
This defence has been accepted in Irish courts, when a man armed with a revolver forced another man to receive stolen money. Up to now the use of this defence has been governed by legal precedent, or judge-made law, rather than by statute. The commission consultation paper is putting forward suggestions for legislation.
It is provisionally recommending that the defence of duress or necessity applies when the threat is of death or serious harm; the target need not necessarily be a close relative or friend of the accused; the accused should have resisted to a normal degree, and this resistance must have been overcome by the threat; the accused should have tried to seek official protection; and the accused should not have put themselves at risk of coercion by, for example, joining a criminal gang.
In relation to a charge of murder, the defence could have the effect of reducing it to manslaughter.
This defence, and the related defence of "necessity" (where the accused is faced with compelling extraneous circumstances), should apply when the accused is forced to choose between the lesser of two evils.
The Chief Justice, Mr Justice Murray, will launch the consultation paper this evening. Submissions will then be sought, which should be with the commission by next September 30th.
A consultation paper is the first stage in the preparation of a report by the commssion. It is followed by a period of consultation, and then a final report is prepared, intended as the basis for new legislation or changes in rules of court.