Thomson v. H. M. Advocate 1983 J.C. 69, 1983 J.C
Citation: Thomson v. H. M. Advocate 1983 J.C. 69, 1983 J.C
Rule of thumb: What is the difference between robbery & burglary? Robbery involves threats of force & is a far more serious charge.
Judgment:
"I would therefore be prepared in charging a jury in a case of armed robbery to accept the law so stated [in Hume's Commentaries], but I would be disposed to make very clear the strict limits within which coercion would in such a case provide a complete defence and to emphasise the qualifications which emerge from the passage quoted. I say 'in such a case' because Hume in the passage referred to expressly applied these very strict qualifications to the defence of coercion 'in the case of a trial for any atrocious crime', which robbery undoubtedly is. It may be noted that the danger must be a danger of death or great bodily harm, and that it must be immediate. As the trial Judge in H. M. Advocate v. McCallum [(1977) S.C.C.R. (Supp.) 169 at p. 170] pointed out in his charge to the jury, under reference to Anderson: Criminal Law of Scotland, 2nd ed., p. 16, the threats must have had reference to present, not to future, injury. Moreover, the threats used must, to quote the passage in Anderson, have been 'of such a nature as to overcome the resolution of an ordinarily constituted person of the same age and sex as the accused.' This is an objective test related to an ordinary reasonable person. Heroic qualities are not required by the law in this context, nor is allowance made for excessive cowardice or timidity. It is a matter of commonsense suitable for decision by a jury. It must also be observed that the will and resolution of the accused must in fact have been overborne and overcome by the threats and the danger. He must have found himself entangled in a share of the criminal enterprise, to use Hume's words (i, 52), 'entirely against his will'. There must have been 'an inability to resist the violence'’, at 72 HM Advocate v Thomson 1983 JC 69 - ‘early going to the police etc ... measures of the accused's credibility and reliability on the issue of the defence.” LJ-C Wheatley
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.