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Business law - Essay Example

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Whelan is a case of Duress by threats. The general principle of duress is that the defendant must have been forced to commit a crime of breaking law. He should have been threatened that he (defendant) would either be harmed or else he would not…
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Business law

Download file to see previous pages... Whealan, 1934).
The trial judge in the case posed a query “In receiving the money did Peter Whelan act under threats of immediate death or serious personal violence?” The answer of the jury was in the affirmative. The trial judge actually ruled that even though the defendant was forced to accept the stolen money that is he was under duress, but still this cannot be a defence. It only acted as moderation. The court of criminal appeal noted that if a defendant acts under duress then an acquittal will be rare. Thus because of this the case was decided on the general principle of duress ([1934] IR 518, 524).
But the Court mentioned that the application of the general principle will have to be limited to certain extent. In this case the Court stated that “where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats”.1
Thus, the common range of the protection of duress, as sketched in Whelan, is that; “the will of the defendant must have been overborne by the threats, the duress must be operating when the offence is committed and if there is an opportunity for the individual will to reassert itself and it is not taken, a plea of duress will fail” (in AG v. Whealan, 1934).
In Attorney General v. Whelan, it was found that the defendant was in menaces and this was acknowledged to “death or serious violence”. In this case even though no real threats were faced by the defendant, but it was found that the existence of the person threatening was armed. It was also noted that the person so armed was such a person who will not hesitate even to use the pistol, was adequate to amount to a risk of “death or serious violence”.2
The ratio decidendi in the case was based on the principle of "neighbour" even though it was ...Download file to see next pagesRead More
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