Director Of Public Prosecutions For Northern Ireland v Lynch [1975] UKHL 5

House of Lords
Between
Director Of Public Prosecutions For Northern IrelandAppellantLynchRespondent
Before
Lord Morris of Borthy-GestLord WilberforceLord Simon of GlaisdaleLord KilbrandonLord Edmund-DaviesDate 12 March 1975

LORD EDMUND-DAVIES

My Lords,
" (1) On a charge of murder is the defence of duress open to a person who is accused as a principal in the second degree (aider and abettor)?
(2) Where a person charged with murder as an aider and abettor is shown to have intentionally done an act which assists in the commission of the murder with knowledge that the probable result of his act, combined with the acts of those whom his act is assisting, will be the death or serious bodily injury of another, is his guilt thereby established without the necessity of proving his willingness to participate in the crime?".
"it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion."
" Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact: for he ought rather to die himself, than kill an innocent." (See Hale - Pleas of the Crown, Vol. 1, p. 50).
"In receiving the money did Peter Whelan act under threat of immediate death or serious violence? "
"It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal.
" the commission of murder is a crime so heinous that murder should not be committed even for the price of life "
so that even the strongest duress would not be a justification. There was an indication that there might be other heinous crimes within the same category. No consideration was however given to the position in a murder charge of a principal in the second degree. The court added that where the "excuse" of duress applied (and perhaps their word "excuse" was happier than their word "justification") it must be the case 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."
"he did at pistol point and in fear of his life, he is entitled to be acquitted."
" We are further satisfied that Barry had a viable defence on the basis left to the fury by the learned Judge, namely, that by reason of threats he was so terrified that he ceased to be an independent actor, and that the evidence of violent conduct by the Krays which Barry put before the Court was accordingly relevant and admissible."
"... it is always open to the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective, and that upon this being established the threat in question can no longer be relied upon by the defence. In deciding whether such an opportunity was reasonably open to the accused the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon."
" should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence."
" I repeat also that as at present advised I do not think duress could constitute a defence to one who actually kills or attempts to kill the victim."
"... it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal.)"

Lord Wilberforce

My Lords,(i) that a defence of duress is known to English law and has been so known since the 14th century. (In one form or another it seems to be admitted in all common law and civil law jurisdictions.):(ii) that the defence is admitted in English law as absolving from guilt, not as diminishing responsibility or as merely mitigating the punishment. Some authors do indeed suggest the latter, at least in relation to homicide (c.f. East's Please of the Crown [1803] p. 225) and there may be a case (not an unanswerable case) for saying, generally, that this ought to be the law. It clearly, however, is not the law and, particularly where sentence is mandatory, whether of death or life imprisonment, Parliamentary action would be necessary if proof of duress were to operate upon the sentence. It would also be necessary if duress were to be admitted as diminishing responsibility :(iii) that there is no direct English judicial authority against its application to charges of murder." The reasoning generally used to support the proposition that duress is no defence to a charge of murder is, to use the words of Blackstone cited above, that ' he ought rather to die himself, than escape by the murder of an innocent.' Generally speaking I am prepared to accept this proposition. Its force is obviously considerably less where the act of the threatened man is not the direct act of killing but only the rendering of some minor form of assistance, particularly when it is by no means certain that if he refuses the death of the victim will be averted, or conversely when it is by no means certain that if he com-" plies the death will be a necessary consequence. It would seem hard, for example, if an innocent passer-by seized in the street by a gang of criminals visibly engaged in robbery and murder in a shop and compelled at the point of a gun to issue misleading comments to the public, or an innocent driver compelled at the point of a gun to convey the murderer to the victim, were to have no defence. Are there any authorities which compel us to hold that he would not?".
" When the opinion is expressed that our law recognises compulsion as a defence in all cases except murder, and that opinion is based on the acceptance that acquittal follows because the threatened party is deprived of his freedom of choice, then it seems to me to be irrational, in the light of developments which have come about since the days of the old Dutch and English writers, to exclude compulsion as a complete defence to murder if the threatened party was under such a strong duress that a reasonable person would not have acted otherwise under the same duress. The only ground for such an exclusion would then be that, notwithstanding the fact that the threatened person is deprived of his freedom of volition, the act is still imputed to him because of his failure to comply with what has been described as the highest ethical ideal.
" In the application of our criminal law in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means, that which can be expected of the ordinary, average person in the particular circum-" stances. It is generally accepted, also by the ethicists, that for the ordinary person in general his life is more valuable than that of another. Only they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, what-" ever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law, is justified."
"What we think is the existing law and what at all events we suggest ought to be the law " sbut it was not adopted in England, and as regards some at any rate of the listed offences did not represent the law at the time and certainly does not now represent the law as it is. The authority quoted as regards murder is, as usual that of Hale -"he ought rather to die himself than kill an innocent". (Hale, Pleas of the Crown 50).
" Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband."

Lord Simon of Glaisdale

My Lords,

I

II

III

"Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life, if a man steale viands to satisfie his present "hunger, this is no felony nor larceny. So if divers bee in danger of drowning by the casting away of some boat or barge, one of them get to some plancke, or on the boats side to keep himselfe above water, and another to save his life thrust him from it whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable."
" The difficulty about adopting a distinction between the principal and secondary parties as a rule of law is that the contribution of the secondary party to the death may be no less significant than that of the principal."

IV

" . . . it is safe to assert that it is not a defence for D merely to show that the act was done by him in obedience to the orders of a superior, whether military or civil ".

V

" If I have accepted an inheritance under the influence of fear, I am of opinion that I become heir, because, although, if I had been free, I should have refused, yet I did consent, though under compulsion (coactus volui). But the Praetor will give me relief ". (Dig. IV, ii. 21.5.)(The Praetor exercised an equitable jurisdiction to relieve from the ordinary legal consequences of a transaction.)

VI

VII

VIII

(1) to approve of the various cases where duress has been allowed to be a defence negativing the crime, and then extend the doctrine to the crime of murder as a principal;(2) to overrule' the cases where duress has been allowed to be a defence negativing the crime, leaving duress as a matter of mitigation of sentence in crimes other than homicide, and in homicide as a defence reducing murder to manslaughter;(3) to affirm the cases where duress has been allowed to be a defence negativing the crime, but to refuse to extend it to murder as a principal.

IX

" (2) Where a person charged with murder as an aider and abettor is shown to have intentionally done an act which assists in the commission of the murder with knowledge that the probable result of his act, combined with the acts of those whom his act is assisting, will be the death or serious bodily injury of another, is his guilt thereby established without the necessity of proving his willingness to participate in the crime? "
" A person who supplies the instrument for a crime or anything essential to its commission aids in the commission of it; and if he does so knowingly and with intent to aid, he abets it as well and is therefore guilty of aiding and abetting ".

Lord Kilbrandon

My Lords,
" As at present advised I do not think duress could constitute a defence to one who actually kills or attempts to kill the victim."
" Be the law of burdingsek na man sould be hanged for sae meikill of stollen meat as he may bear in ane seck upon his back. "

Lord Edmund-Davies

My Lords,"It was . . . proved that, before the date of the shooting, six policemen had already been murdered in the Ardoyne area, which was a stronghold of the Provisional I.R.A., and where the appellant lived, and that Sean Meehan was a well-known and ruthless gunman, and the appellant and Bates gave evidence that Meehan was the kind of person whom it would be perilous to defy or disobey and who, on the occasion in question, gave his instructions in a manner which indicated to them that he would tolerate no disobedience. There was no evidence of a direct threat by Meehan or any other person against the life or personal "safety of the appellant or any member of his family, but both the appellant and Bates testified to their fear of Meehan and their clear view that their disobedience of his instructions would cause them to be shot"."The constraint . . . can be implied, as well as express, and, once there is evidence thata. A. has somehow causedb. B. to fear for himself or his family, it is a question of fact whether the reasonable possibility of this having occurred has been disproved by the Crown. We consider that the evidence in this case raised a question for the jury whether Meehan impliedly threatened the appellant with death or serious bodily injury ".". . . the defence of duress is not available to an accused who voluntarily joins in a criminal enterprise and is afterwards subjected to threats of violence in order to ensure that he does not withdraw, even if the enterprise becomes more gravely criminal than the accused foresaw "." If a man chooses to expose and still more if he chooses to submit himself to illegal compulsion, it may not operate even in mitigation of punishment. It would surely be monstrous to mitigate the punishment of a murderer on the ground that he was a member of a secret society by which he would have been assassinated if he had not committed murder "."We consider it to be a question of fact (assuming duress to be a proper issue for the jury) whether the Crown could successfully invoke this principle, bearing in mind that if the effect of the threat is felt at the material time, this is enough to keep duress in issue: R. v. Hudson "( [1971] 2 Q.B.D. 202 ), Subramaniam v. Public Prosecutor ( [1956] 1 WLR 965 ). The same authorities are relevant to the immediacy of the threat, because the question is not when the threats are made, but whether they overbore the will of the accused at a material time "." There was, in our opinion, on the facts a clear issue of duress in this case, and therefore the question in this appeal as to whether duress may afford a defence to a person accused of murder as a principal in the second degree is material".I. Should duress be a defence to any crime?
" . . . the law is that no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind . . . It cannot be too often repeated that the apprehension of personal danger does not furnish any excuse for assisting in doing an act which is illegal "
"Criminal law is itself a system of compulsion on the widest scale. It is a collection of threats of injury to life, liberty and property if people do commit crimes. Are such threats to be withdrawn as soon as they are encountered by opposing threats? The law says to a man intending to commit murder, If you do it I will hang you. Is the law to withdraw its threat if someone else says, If you do not do it I will shoot you?
Surely it is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary. It is, of course, a misfortune for a man that he should be placed between two fires, but it would be a much greater misfortune for society at large if criminals could confer impunity upon their agents by threatening them with death or violence if they refused to execute their commands. If impunity could be so secured a wide door would be opened to collusion, and encouragement would be given to associations of malefactors, secret or otherwise. No doubt the moral guilt of a person who commits a crime under compulsion is less than that of a person who commits it freely, but any effect which is thought proper may be given to this circumstance by a proportional mitigation of the offender's punishment.These reasons lead me to think that compulsion by threats ought in no case whatever to be admitted as an excuse for crime, though it may and ought to operate in mitigation of punishment in most though not in all cases "." Crutchley was a case where justice demanded not merely a mitigation of punishment, but no punishment at all; nor would there have been any sound reason for registering even a technical conviction ".
" Compulsion by threats of immediate death or grievous bodily harm . . . shall be an excuse for the commission of any offence other than high treason . . . , murder, piracy, offences deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm and arson ..."
II. When is the plea of duress available?"... it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused "." If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crimes and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent"." Murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification "." It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was ; how awful the suffering ; how hard in such trials to keep the judgment "straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime "." We are . . . satisfied that Barry had a viable defence . . . that by reason of threats he was so terrified that he ceased to be an independent actor, and that the evidence of violent conduct by the Krays which Barry put before the Court was accordingly relevant and admissible "." A party who is absent may in fact have played a more significant role in the killing than one who is present and, if both were acting under duress, it would be wrong that the former should be able to rely on that defence and the latter not ... If duress is once admitted as a possible defence to an accessory, then it is difficult to find a logical limit to the availability of the defence ".III. What is the basis of the plea of duress?"True duress is not inconsistent with act and will as a matter of legal definition, the maxim being coactus volui. Fear of violence does not differ in kind from fear of economic ills, fear of displeasing others, or any other determinant of choice; it would be inconvenient to regard a particular type of motive as negativing will " 1" Apart altogether from philosophical argument, it seems clear that the defendants Whelan, Gill, Subramaniam, and Hudson intentionally received stolen goods, stole, took possession of ammunition and committed perjury, even though the reason that they did so was that there respective wills were overborne by threats. Their prima facie criminal acts were the result of a conscious choice, although the choice was made unwillingly and because of the threats to which they were subjected ". At the end of the day, the defence of duress is probably best evaluated without reference to its supposed relation to either actus reus or mens rea, for, in the words of Prof. Turpin (1972 Cambridge Law Journal 205), not every morally exculpatory circumstance has a necessary bearing on these legal ingredients of crime "."It means that she admits that she has committed the crime but prays to be excused from punishment for the consequences of the crime by reason of the duress, and no doubt In those circumstances the law would allow a verdict of Not Guilty to be entered "."not as showing that no offence had been committed, but as showing that she had no means rea because her will was overborne by threats of imprisonment or violence so that she would be excused from punishment"." she had no mens rea must be regarded as having been employed to describe an actor whose will was overborne in circumstances which rendered his conduct excusable ".
"It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal.
IV. Why should duress not be available in murder?" To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it"."The criminal law should not be applied as if it were a blueprint for saintliness, but rather in a manner in which it can be obeyed by the reasonable man , by saying (at p. 480): It is generally accepted . . . that for the ordinary person in general his life is more valuable than that of another. Only those who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified "."The Act can be regarded as merely an incomplete statement of the common law, and the common law still exists to supplement its deficiency ",and the same may be said of the Northern Ireland Act of 1945. Smith and Hogan (3rd Ed., 169) have pointed out that coercion is a wider defence than duress (" because , as the Solicitor-General said during the debate on the Bill, coercion imports coercion in the moral, possibly even in the spiritual realm, whereas compulsion imports something only in the physical realm"), and that the 1925 Act renders it available to wives in addition to the general defence of duress. It would therefore not be right to say that, because Parliament has withheld the wider defence of coercion from charges of complicity in murder, the narrower defence of duress should also be unavailable in a murder trial.". . . the same result could have been reached in Tyler even if murder is not excepted from the defence of duress. There appears to have been no evidence that Tyler went in fear of death (which would be the minimum necessary to justify murder); nor was any attempt made to show that Tyler could not escape from the gang. Also, the evidence seemed to show that Tyler had voluntarily joined a criminal organisation knowing of its purpose; and one who does this has no cause for complaint if he is debarred from the defence of duress in respect of threats afterwards made to him "."the Privy Council assumed that duress was a defence . . ."." the question of the legal effect of duress as a defence to a charge of minor participation in murder . . .",and, in the course of an illuminating review of the relevant material, judicial and otherwise, said (p. 493),". . . the authorities which show that duress may be a defence to some types of treasonable act do not necessarily prove to my mind that it is a defence to all types of treasonable act. If this is so, then conversely it may be that authorities which say or appear to say that duress is not a defence to murder generally do not necessarily prove that it is not a defence to any conceivable type of complicity in murder, however minor ".
" It would seem hard ... if an innocent passer-by seized in the street by a gang of criminals visibly engaged in robbery and murder in a shop and compelled at the point of a gun to issue misleading comments to the public, or an innocent driver compelled at the point of a gun to convey the murderer to the victim, were to have no defence. Are there any authorities which compel us to hold that he would not? "
". . . in my view, the direction of the learned judge that threats can never be an excuse for the taking of an active part in murder, such as coughing to disguise the approach of the murderer, was too wide ". His conclusion (p. 499) was that . . . the trend of the later cases, general reasoning, and the express authority of the Privy Council in Sephakela's Case prevent the acceptance of the simple proposition that no type of duress "can ever afford a defence to the type of complicity in murder. I repeat also that, as at present advised, I do not think duress could constitute a defence to one who actually kills or attempts to kill the victim "."There is nothing, in my view, in Sephakela's Case to prevent us from holding that there can be circumstances in which duress can be a defence to a person charged with murder as a principal in the second degree ". Such was the role of Lynch, and this House is accordingly not now called upon to deal with the reservation of the Chief Justice in relation to a person who under duress actually kills or attempts to kill the victim "." The difficulty about adopting a distinction between the principal and secondary parties as a rule of law is that the contribution of the secondary party to the death may be no less significant than that of the principal".

V. Conclusion

"Murder is a crime so heinous that... in such a case the strongest duress would not be any justification"
is, with respect, to beg the whole question. That murder has a unique gravity most would regard as not open to doubt, but the degree of legal criminality or blameworthiness involved in participation therein depends upon all the circumstances of the particular case, just as it does whenever the actus reus and the mens rea necessary to constitute any other offence are established. In homicide, the law already recognises degrees of criminality, notwithstanding that unlawful killing with malice aforethought has unquestionably taken place. In non-homicidal cases, the degree of criminality or blameworthiness can and should be reflected in the punishment meted out, a course which the mandatory life sentence for murder prohibits. And in relation to all offences ( "except possibly treason and murder as a "principal"", Lord Parker, C.J., said in Reg. v. Hudson and Taylor ante), a person committing them is entitled to be completely acquitted if at the material time he was acting under the threat of death or serious bodily harm. Prof. J. C. Smith has rightly observed ([1974] Crim. L.R. 352) that,"To allow a defence to crime is not to express approval of the action of the accused person but only to declare that it does not merit condemnation and punishment"."the underlying principle which is the justification for retaining the common law as a living source of rules binding upon all members of contemporary society in England ".318507 Dd 896252 120 3/75 StSDirector of Public Prosecutions for Northern Ireland (Respondent) v. Lynch (Appellant) (on Appeal from the Court of Criminal Appeal in Northern Ireland).

Die Mercurii, 12° Martii 1975

Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions for Northern Ireland against Lynch (on Appeal from the Court of Criminal Appeal in Northern Ireland), That the Committee had heard Counsel, as well on Monday the 18th, as on Tuesday the 19th, Wednesday the 20th, Thursday the 21st, Monday the 25th, Tuesday the 26th and Wednesday the 27th, days of November last, upon the Petition and Appeal of Joseph Lynch, now detained at Her Majesty's Prison Maze, Lisburn, County Antrim, Northern Ireland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal in Northern Ireland of the 27th of June 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public-Prosecutions for Northern Ireland, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Criminal Appeal in Northern Ireland of the 27th day of June 1974, complained of in the said Appeal, be, and the same is hereby, Discharged, and that the conviction imposed by the Honourable Mr. Justice Gibson at the Belfast City Commission on the 20th day of June 1972 be, and the same is hereby. Quashed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Criminal Appeal in Northern Ireland with a Direction That a new Trial be had pursuant to section 13 of the Criminal Appeal (Northern Ireland) Act 1968, and with a further Direction That the said Court do proceed in accordance with the provisions of section 14 of the said Act: And it is also further Ordered, That the Appellant do remain in custody pending a decision by that Court.