Duress and loss of control: fear and anger in excusatory defences
Keywords:emotion, characteristics, fear, anger, loss of control, duress, choice/character theory, neuroscience, responsibility
This article examines the role of the anger and fear emotions in the loss of control and duress defences and argues that, although fear is now included as a trigger in loss of control, priority is still given to anger as a triggering event. Furthermore, in duress, although fear is the overriding mental state of the duressee, it wrongly forms no part of the rationale of the defence at all.
Following a brief examination of both emotions, the article – individually with respect to each defence – considers issues relating to the (in)sufficiency of the objective element contained in the defences, specifically because neither properly take fear into account as a characteristic which should be attributed to the reasonable person, and then, to a lesser extent, what impact theoretical principles, such as mechanistic and evaluative approaches, have on the role emotion plays in both defences (if any). It is clear that none of these, nor indeed the relatively new discipline of neuroscience, examined in the penultimate section of the article, can tell us about the effects of emotion on decision-making, reasoning, control and responsibility, nor can they provide an answer as to how emotions – fear especially – can be properly incorporated into both defences.
Numerous emotion-based alternative solutions are disseminated, and, although no preference is expressed here, it is recommended, firstly, that fear should be more effectively incorporated into the loss of control defence and, secondly, that duress should include fear as a characteristic attributed to the reasonable person.