Under S1 theft act 1968 why is it that when duress is raised as a defence its up to the crown to disprove it?

Question

and not for the defence to prove that its an actual real defence and not as any reasonable person would think to be ficticious?

Answer 1

Because the burden of proof remains with the prosecution. It is for the jury to decide if the defence of duress is valid or not and to find accordingly. S.1 of the 1968 Act simply sets out the definition of the Act and does not mention a defence of duress

Duress, in law can mean many things. If the defendants family has been kidnapped then told to steal money from a bank or his family would be killed then the defence of necessity would be reasonable, he was saving the lives of his family.

This is an extreme example and each case must be taken on its merits.

Answer 2

S1 the theft Act 1968 makes no mention of duress it instead provides a definition of theft which is 'the dishonest appropriation of property belonging to another with the intention to permanently deprive'
Duress is a common law defence to all crimes based on law full excuse, the philosophical basis for this defence may be explained in the following way.
For all criminal offences excluding strict liability offences the prosecution must establish that the defendant has the required mental state at the time of the offence required by the definition of the offence
In very basic terms a defendant to be found guilty of a criminal offence must be proved to have intended to commit the offending act or be reckless to the consequences (risk of harm) of their acts
Duress is a defence to all crimes based on the fact that the defendant did not possess the required mens rea because he had been forced to act against his will and is therefore innocent of the offence.
In applying this to the main thrust of your question, it is important to remember that our legal system is based on presumed innocence, so just as it is for the prosecution to prove beyond reasonable doubt a defendants guilt, it is in-turn incumbent on the prosecution to disprove a defendants innocence.
Secondly its possible to argue that it should not be an objective desision made by the jury (whether or not the jury thinks it is reasonable to claim duress) as most criminal law has recognised the need to take into account the subjective opperative factors on the defendants mind in this case it is whether the defentant had the honest belief that he had no option to commit the substantive offence because of the duress that was operative on his free will at the time of the offence.

Answer 3

S1 Theft Act 1968

Answer 4

i will try to explain this for you, when a person is charged with theft, some defendents say that they were forced to commit the crime by someone else (under duress) under the section 1 you quoted the prosecution will require proof that this was the case, this will have been investigated by the arresting police officers,the only way forward would be for the police to find evidence to prove you were telling the truth,they will have to arrest and charge someone for inciting someone to commit an offence by using threats or other means, if they come up with evidence then the defendant would probably not even be prosecuted, a lot of people say they were made to commit an offence of theft by someone else,remember in the police caution you are expected by the police to disclose all this information, if you cannot then in law you have no defence, and cannot use it in court at a later date, i hope this helps.

Answer 5

I think it may be a case of the 'innocent till proven guilty' rule.
If the defendant raises circumstances where they may not be responsible for their actions, then naturally the burden of proof will shift to the Crown- they must prove beyond reasonable doubt that the defendant IS responsible for their actions. Otherwise the defence will work.

Answer 6

Isn't this something to do with being innocent before being proved guilty? Therefore it is up to the prosecution to prove that the defendant was not under duress, not for the defendant to prove s/he was.

I find the whole question of what is 'reasonable' and what is not when argued in Court difficult to understand!

Answer 7

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Answer 8

Innocent until proved guilty.

Answer 9

they are bringing the prosecution then up to them to prove it.