R v Howe [1986] UKHL 4

House of Lords

Between

RAppellant

HoweRespondent

Before

Lord Hailsham of St

Date 27 January 1986

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 Appeal (Criminal Division) of 27th January 1986 complained of in the said Appeal be, and the same is hereby, Affirmed; That the first Certified Question be answered in the negative; That the second and third Certified Questions be answered in the affirmative; and That the said Petition and Appeal be, and the same is hereby, dismissed this House.

Cler: Parliamentor:

Judgment: 19.2.87

HOUSE OF LORDS

REGINA v.

BURKE (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

REGINA v.

HOWE (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

REGINA v.

BANNISTER (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

(CONJOINED APPEALS)

REGINA

CLARKSON (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

Lord Chancellor Lord Bridge of Harwich Lord Brandon of Oakbrook Lord Griffiths Lord Mackay of Clashfern

THE LORD HAILSHAM OF ST. MARYLEBONE

My Lords,

These appeals arise from two cases, one originating from a trial in the Manchester Crown Court before Jupp J. and a jury, (Howe and Bannister) and one in the Central Criminal Court before the then Common Sergeant, Judge Tudor Price and a jury (Burke and Clarkson).

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Howe and Bannister were tried with two other defendants (Murray and Bailey) both of whom during the trial changed their plea to one of guilty and were appropriately sentenced.

The indictment in the case of Howe, Bannister, Murray and Bailey accused the four men of two murders (Elgar and Pollitt) and a conspiracy to murder (Redfern, an intended victim who escaped in time). The three counts related to three successive days, respectively 10, 11 and 12 October 1983.

Burke and Clarkson were charged with the murder of a single victim (Botton) on 9 July 1983.

The four current appellants appealed against their convictions to the Court of Appeal (Criminal Division) [1986] 1 Q.B. 626 who dismissed all four appeals in a judgment delivered on 21 January 1986. In giving leave to appeal to your Lordships' House the Court of Appeal (Lord Lane C.J., Russell and Taylor JJ.) certified three questions of law of general public importance as involved in the decision. The three certified questions are:

"(1) Is duress available as a defence to a person charged with murder as a principal in the first degree (the actual killer)?

Can one who incites or procures by duress another to kill or to be a party to a killing be convicted of murder if that other is acquitted by reason of duress?

Does the defence of duress fail if the prosecution prove that a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats as did the defendant?"

The first of these questions involves a reconsideration of the much discussed decisions in Director of Public Prosecutions for Northern Ireland v. Lynch

[1975] AC 653

and Abbott v. The Queen

[1977] AC 755

In answering the second question, the Court of Appeal

invited us to reconsider the decision of the Court of Appeal in

Reg. v. Richards [1974] Q.B. 776, by which it considered itself bound.

In the arguments presented before your Lordships many other reported authorities and citations from established writers, including Law Commission Report No. 83 on "defences of general application" printed by order of the House of Commons, dated 27 July 1977.

Reference to other cases will be made as and where appropriate. I take the facts of these truly horrible cases almost verbatim from the judgment of the Lord Chief justice in the instant appeal [1986] 1 Q.B. 626. First, as to the case of Howe and Bannister, Murray and Bailey, the facts were as follows:

At the time of the offences Howe and Bailey were 19, Bannister was 20 and Murray was 35. Howe had one minor conviction for motoring offences. Bannister had convictions for

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theft and burglary but none for violence. He was on probation. Bailey had convictions for burglary and theft. Murray had previous court appearances, including two convictions for assault occasioning actual bodily harm, and in 1974 he had been convicted of assault with intent to rob and robbery in respect of which he had been sentenced to eight years' imprisonment.

Bannister met Murray in Risley Remand Centre. Howe and Bailey met in Stockport when Bailey was living in a hostel and Howe happened to be living next door with his grandmother. Murray came to visit Bailey when he was on six days' home leave from a sentence of two and a half years' imprisonment. Bailey introduced Howe to Murray. The Lord Chief

Justice continued at pp. 635-636:

"Count 1; murder of Elgar;

The first victim was a 17 year old youth called Elgar. He was offered a job as a driver by Murray. On the evening of 10 October 1983 all five men were driven by Murray up into the hills between Stockport and Buxton, eventually stopping at some public lavatories at a remote spot called Goytsclough. Murray at some stage told both appellants in effect that Elgar was a 'grass,' and that they were going to kill him. Bannister was threatened with violence if he did not give Elgar 'a bit of a battering.' From thenceforwards Elgar, who was naked, sobbing and begging for mercy, was tortured, compelled to undergo appalling sexual perversions and indignities, he was kicked and punched. Bannister and Howe were doing the kicking and punching. The coup de grace was executed by Bailey who strangled Elgar with a headlock. It is unnecessary to go into further details of the attack on Elgar which are positively nauseating.

"In brief the two appellants asserted that they had

only acted as they did through fear of Murray, believing

that they would be treated in the same way as Elgar had

been treated if they did not comply with Murray's directions.

"The prosecution were content to assent to the proposition that death had been caused by Bailey strangling the victim, although the kicks and punches would have resulted in death moments later even in the absence of the strangulation. The body was hidden by the appellants and the other two men.

"On this basis the appellants were in the position of what would have earlier been principals in the second degree and duress was left to the jury as an issue on this count.

"Count 2; murder of Pollitt:

Very much the same course of conduct took place as with Elgar. On 11 October 1983 the men picked up Pollitt, a 19-year-old labourer, and took him to the same place where all four men kicked and punched the youth. Murray told Howe and Bannister to kill Pollitt, which they did by

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strangling him with Bannister's shoe lace. As the appellants were in the position of principals in the first degree, the judge did not leave duress to the jury on this count.

"Count 3; conspiracy to murder Redfern:

The third intended victim was a 21-year-old man. The same procedure was followed, but Redfern suspected that something was afoot and managed with some skill to escape on his motorcycle from what would otherwise have inevitably been another horrible murder. The judge left the defence of duress to the jury on this charge of conspiracy to murder.

"The grounds of appeal, which are the same in respect of each of these appellants, are as follows: That the judge erred in directing the jury; (1) in respect of count 2, that the defence of duress was not available to a principal in the first degree to the actual killing; (2) in respect of counts 1 and 3, that the test as to whether the appellants were acting under duress contains an 'objective' element; that is to say, if the prosecution prove that a reasonable man in the position of the defendant would not have felt himself forced to comply with the threats, the defence fails."

So much for the facts relating to the appellants Howe and Bannister.

The Lord Chief Justice then turned to the case of Burke and Clarkson. In the case of Howe and Bannister the defence of duress was left to the jury by Jupp J. on the third count of conspiracy to murder and rejected by the jury. However, Jupp J. had directed the jury in relation to duress. In this case Burke dressed as a policeman had killed Botton with a sawn off shotgun at the entrance of Botton's house. The Lord Chief Justice continued at p. 637:

"The prosecution's case was that Burke had done this at the request of Clarkson, who was anxious to prevent Botton from giving evidence against him."

"Clarkson's defence was that he had nothing to do with the shooting at all. Burke's defence was that he had agreed to shoot Botton because of his fear that Clarkson would kill him if he did not, but when it came to the event, the gun went off accidentally and the killing therefore was unintentional and amounted to no more than manslaughter.

"This defence was evidently rejected by the judge, but his defence in respect of manslaughter was left to the jury.

A further submission on behalf of Burke was not argued before us. On the third certified question Jupp J.'s direction to the jury on the nature of duress, although not identical with that of Judge Tudor Price equally raised the question of the objective element in the threats required raised by the third question certified by the Court of Appeal. The only ground of appeal

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separately argued before your Lordships on the part of Clarkson depends on the answer to be given to the second certified question to which I will return later.

On the third certified question Mr. Self on behalf of the appellants other than Clarkson addressed to us an impressive argument that the test applied is not objective, i.e. not:

". . . whether the threat was of such gravity that it might well have caused a reasonable man placed in the same situation as the defendants to act as the defendant did"

nor . . .

"would a sober person of reasonable firmness sharing the defendant's characteristics have responded to the threats by taking part in the killing?"

Mr. Self's submission was to the effect that where the defence of duress is available to an accused, the test of duress does not contain either of these objective elements but is purely subjective to the accused and depends solely on the effect which the actual threat had on the mind of the particular accused.

From the above, it will be seen that each of the appellants other than Clarkson were actual participants, whether as principal in the first or second degree, in the perpetration of the actual killing of the respective victims in respect of the counts of

murder. Clarkson's defence, which was that he had nothing whatever to do with the murder of Botton was rejected by the jury and nothing turns on this at all except that the jury's verdict means that he was the real villain of the piece, since, on any view of the facts, Burke acted at his suggestion and was very much under his influence. The success of Clarkson's appeal depends solely on the answer to the second certified question, and only arises in the event that Burke's appeal on the first or third question succeeds or succeeds to the extent that a conviction of Burke for manslaughter should be substituted in the case for the verdict of murder. Counsel for Clarkson very properly conceded that the decision of the second question was free from authority binding on this House and open to your Lordships, both on principle and authority, since Reg. v. Richards [1974] Q.B. 776, by which the Court of Appeal regarded itself as bound, is not binding on your Lordships' House. It was conceded that, on the facts as they must be assumed to be for the purposes of the second question, apart from authority the point was totally devoid of merit, and, despite the advocacy of counsel, their Lordships did not think fit to trouble counsel for the respondent on this question. The Court of Appeal does not appear to have referred directly (although it was mentioned in argument), to the horrible case of Reg. v. Cogan

[1976] QB 217

, which, if the answer had not been otherwise obvious, seems to me to dispose of the matter. In the event, we also did not call upon the respondent to argue the third certified question since, in my opinion, and, I believe, that of my noble and learned friends, the definition of duress, whether applicable to murder or not, was correctly stated by both trial judges to contain an objective element on the lines of their respective directions and this must involve a threat of such a degree of violence that "a person of reasonable firmness" with the characteristics and in the

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situation of the defendant could not have been expected to resist. No doubt there are subjective elements as well, but, unless the test is purely subjective to the defendant which, in my view, it is not, the answer to the third certified question, like that to the second, must be "yes."

This leaves us free to discuss the first, and principal issue in the appeal which is the answer to be given to the first of the three certified questions. In my opinion, this must be decided on principle and authority, and the answer must in the end demand a reconsideration of the two authorities of Director of Public Prosecutions for Northern Ireland v.Lynch

[1975] AC 653

and Abbott v. The Queen

[1977] AC 755

. Having been myself a party to Abbott, I feel I owe it to the two noble and learned friends then with me in the majority to say that we were very conscious of the fact that our decision would only be of persuasive authority in the English jurisdiction whilst the decision in Lynch, though a Northern Irish case, which distinguished for the purposes of duress between principals in the first degree on the one hand, and principals in the second degree and aiders and abettors on the other, being a decision of the House of Lords would be likely to be treated as binding throughout England and Wales as well as Northern Ireland. We did, however, say at,

[1977] AC 755

, 763:

"Whilst their Lordships feel bound to accept the decision of the House of Lords in Lynch's case they find themselves constrained to say that had they considered (which they do not) that that decision is an authority which requires the extension of the doctrine to cover cases like the present they would not have accepted it."

Speaking only for myself, it was precisely because the three noble and learned Lords in the majority in Lynch had expressly left open the availability of duress as a defence to the actual participant in a murder that I found it possible to accept the decision in Lynch without criticism, and then only because the Abbott appeal was solely concerned with the question so expressly left open. One only needs to read the facts in Abbott to be aware of exactly what the Board was being asked to do if it extended Lynch and allowed the appeal.

The present case, in my opinion, affords an ideal and never to be repeated opportunity to consider as we were invited expressly to do by the respondent, the whole question afresh, if necessary, by applying the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 to the decision in Lynch .

I therefore consider the matter first from the point of view of authority. On this I can only say that at the time when Lynch was decided the balance of weight in an unbroken tradition of authority dating back to Hale and Blackstone seems to have been accepted to have been that duress was not available to a defendant accused of murder. I quote only from Hale and Blackstone. Thus Hale's Pleas of the Crown, vol. 1, p. 51:

"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

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punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent."

Blackstone's Commentaries on the Laws of England. 1857 ed., vol. 4, p. 28 was to the same effect. He wrote that a man under duress:

". . . ought rather to die himself than escape by the murder of an innocent."

I forbear to quote the eloquent and agonised passage in the dissenting speech of Lord Simon of Glaisdale in Lynch at p. 695 of the report, or the more restrained exposition of Lord Kilbrandon at p. 702 on the law as expressed in Reg. v. Dudley and Stephens

(1884) 14 QBD 273

. These quotations are unnecessary since it seems to have been accepted both by the majority in Lynch and the minority in Abbott, that, to say the least, prior to Lynch there was a heavy preponderance of authority against the availability of the defence of duress in cases of murder.

I would only add that Article 8 of the Nuremberg statute which was, at the time, universally accepted, save for its reference to mitigation, as an accurate statement of the common law both in England and the United States of America that:

"The fact that the defendant acted pursuant to the order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."

"Superior orders" is not identical with "duress," but, in the circumstances of the Nazi regime, the difference must often have been negligible. I should point out that under Article 6, the expression "war crimes" expressly included that of murder; which, of course, does not include the killing of combatants engaged in combat.

What then is said on the other side? I accept, of course, that duress for almost all other crimes had been held to be a complete defence. I need not cite cases. They are carefully reviewed in the case of Lynch and establish I believe that the defence is of venerable antiquity and wide extent. I pause only to say that although duress has, in my view, never been defined with adequate precision, two views of its nature can no longer be viewed as correct in the light of reported authority. The first is that of Stephen in his History of the Criminal Law of England (1883), who first promulgated the opinion that duress was not a defence at all but, as in the Nuremberg statute, only a matter of mitigation. The fact is that, where it is applicable at ail, in a long line of cases duress has been treated as a matter of defence entitling an accused to a complete acquittal. But in almost every instance where duress is so treated a cautionary note has been sounded excluding murder in terms sometimes more, and sometimes less emphatic, from the number of crimes where it can be put forward.

The second unacceptable view is that, possibly owing to a misunderstanding which has been read into some judgments, duress

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as a defence affects only the existence or absence of mens rea. The true view is stated by Lord Kilbrandon (of the minority) Lynch

[1975] AC 653

and by Lord Edmund-Davies (of the majority) in his analysis at p. 709.

Lord Kilbrandon said at p. 703:

"The decision of the threatened man whose constancy is overbourne so that he yields to the threat, is a calculated decision to do what he knows to be wrong, and is therefore that of a man with, perhaps to some exceptionally limited extent, a 'guilty mind.' But he is at the same time a man whose mind is less guilty than is his who acts as he does but under no such constraint." [emphasis mine.]

In coming to the same conclusion Lord Edmund-Davies at pp. 709- 710 quoted from Professor Glanville Williams' well known treatise Criminal Law, 2nd ed. (1961) p. 751 para. 242:

"True duress is not inconsistent with act and will as a matter of legal definition, the maxim being coactus voiui. 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 of will."

After approving a paragraph from Lowry C.J., Lord Edmund-Davies went on to say that two quotations from Lord Goddard C.J. in the disgusting case of Reg. v. Bourne

(1952) 36 Cr. App. R. 125

were subject to criticism on this score. (See the report in Lynch at p. 710).

Before I leave the question of reported authority I must refer to two other cases. The first is Reg. v. Kray (Ronald)

(1969) 53 Cr.App.R. 569

which was, to some extent, relied on by the majority in Lynch, on the score of an obiter dictum of Widgery L.J. at p. 578. I do not myself regard this passage as authoritative. It depends on a concession by the Crown regarding a party who was not before the Court of Appeal as his case had been disposed of at first instance in order to found a submission by the appellants. The dictum is also open to the criticism that Widgery L.J. appeared to treat duress as making a person otherwise than an "independent actor" which is contrary to the analysis which I have accepted above.

The other reported authority is the famous and important case of Reg. v. Dudley and Stephens

(1884) 14 QBD 273

. That is generally and, in my view correctly, regarded as an authority on the availability of the supposed defence of necessity rather than duress. But I must say frankly that, if we were to allow this appeal, we should, I think, also have to say that Dudley and Stephens was bad law. There is, of course, an obvious distinction between duress and necessity as potential defences; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is, in my view a distinction without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary

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fortitude can be excused from the one type of pressure on his will rather than the other.

I shall revert to Dudley and Stephens when I come to consider some of the issues of principle involved in our response to the first certified question. But at this stage I feel that I should say that in Abbott I would have been prepared to accept a distinction between Abbott and Lynch on the basis of the argument which appeared to attract Lord Morris of Borth-y-Gest at pp. 671- 672 of Lynch. I would not myself have immersed myself in the somewhat arcane terminology of accessory, principal in the second degree, and aiding and abetting. But it did seem to me then, and it seems to me now, that there is a valid distinction to be drawn in ordinary language between a man who actually participates in the irrevocable act of murder to save his own skin or that of his nearest and dearest and a man who simply participates before or after the event in the necessary preparation for it or the escape of the actual offender. It is as well to remember that, in the case of Abbott the facts were that Abbott had dug a pit, thrown the victim into it, subjected her in co-operation with others to murderous blows and stab wounds and then buried her alive. It seems to me that those academics who see no difference between that case and the comparatively modest part alleged (falsely as is now known) in Lynch to have been played by the defendant under duress have parted company with a full sense of reality. Nevertheless and in spite of this, and in the face of the somewhat intemperate criticism to which this type of distinction has sometimes been subjected since Abbott I am somewhat relieved to know that the views of my noble and learned friends on the main issue permit me to escape from such niceties and simply to say that I do not think that the decision in Lynch can be justified on authority and that, exercising to the extent necessary, the freedom given to us by the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 which counsel for the respondent urged us to apply, I consider that the right course in the instant appeal is to restore the law to the condition in which it was almost universally thought to be prior to Lynch. It may well be that that law was to a certain extent unclear and to some extent gave rise to anomaly. But these anomalies I believe to be due to a number of factors extraneous to the present appeal and to the intrinsic nature of duress. The first is the mandatory nature of the sentence in murder. The second resides in the fact that murder being a "result" crime, only being complete if the victim dies within the traditional period of a year and a day and that, in consequence, a different crime may be charged according to whether or not the victim actually succumbs during the prescribed period. The third lies in the fact (fully discussed amongst many other authorities in Reg. v. Hyam

[1975] AC 55

) that, as matters stand, the mens rea in murder consists not simply in an intention to kill, but may include an intent to commit grievous bodily harm. It has always been possible for Parliament to clear up this branch of the law (or indeed to define more closely the nature and extent of the availability of duress as a defence). But Parliament has conspicuously, and perhaps deliberately, declined to do so. In the meantime, I must say that the attempt made in Lynch to clear up this situation by judicial legislation has proved to be an excessive and perhaps improvident use of the undoubted power of the courts to create new law by creating precedents in individual cases.

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This brings me back to the question of principle. I begin by affirming that, while there can never be a direct correspondence between law and morality, an attempt to divorce the two entirely is and has always proved to be, doomed to failure, and, in the present case, the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility.

No one, who has read the case of Dudley and Stephens whether in the Law Reports, or in the more popular and discursive volume published by Professor Simpson Cannibalism in the Common Law (1984), can fail to be moved by the poignant and anguished situation to which the two shipwrecked mariners with Brooks (who was not guilty) and the innocent boy of 17, who was the victim, were exposed and which led the Home Secretary of the day to commute a death sentence for murder to one of 18 months imprisonment. Nevertheless, when one comes to examine the case as one of legal principle it is, I believe, the case that the conclusion reached by the judges of the Queen's Bench Division and voiced by Lord Coleridge C.J., not without manifest compassion, has met with very wide acceptance. I quote from (1884) 14 Q.B.D. 273, 286-288:

"Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called 'necessity.' But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. . . It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be no."

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It was pointed out in a footnote in this case at p.288 (attributed to Grove J.) that if the principle were once admitted and the castaways not rescued, in the meantime it would have been lawful for the strongest of the four men to eat his way through the whole crew of the drifting boat, in order to be rescued himself.

I must dissent profoundly from the statement of my predecessor Bacon, a greater moralist perhaps in theory than in practice, where, quoted by Lord Coleridge C.J. in Dudley and Stephens, in his commentary on the maxim "necessitas inducit privilegium quoad jura privata" he writes at p. 285:

"If divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself 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."

I also dissociate myself from the view of Rumpff J. in the South African case S. v. Goliath 1972 (3) S.A.I (based, however, on Roman Dutch law) and quoted in Abbott at

[1977] AC 755

, 771 as a justification for the opinion of the dissenting minority:

"It is generally accepted . . . 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 taw 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."

In general, I must say that I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest, as did the majority in Lynch and the minority in Abbott that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own. Doubtless in actual practice many will succumb to temptation, as they did in Dudley and Stephens. But many will not, and I do not believe that as a "concession to human frailty" the former should be exempt from liability to criminal sanctions if they do. I have known in my own lifetime of too many acts of heroism by ordinary human beings of no more than ordinary fortitude to regard a law as either "just or humane" which withdraws the protection of the criminal law from the innocent victim and casts the cloak of its protection upon the coward and the poltroon in the name of a "concession to human frailty."

I must not, however, underestimate the force of the arguments on the other side, advanced as they have been with such force and such persuasiveness by some of the most eminent legal minds, judicial and academic, in the country.

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First, amongst these is, perhaps, the argument from logic and consistency. A long line of cases, it is said, carefully researched and closely analysed, establish duress as an available defence in a wide range of crimes, some at least, like wounding with intent to commit grievous bodily harm, carrying the heaviest penalties commensurate with their gravity. To cap this, it is pointed out that at least in theory, a defendant accused of this crime under section 18 of the Offences against the Person Act 1861, but acquitted on the grounds of duress, will still be liable to a charge of murder if the victim dies within the traditional period of one year and a day. I am not, perhaps, persuaded of this last point as much as I should. It is not simply an anomaly based on the defence of duress. It is a product of the peculiar mens rea allowed on a charge of murder which is not confined to an intent to kill. More persuasive, perhaps, is the point based on the availability of the defence of duress on a charge of attempted murder, where the actual intent to kill is an essential prerequisite. It may be that we must meet this casus omissus in your Lordships' House when we come to it. It may require reconsideration of the availability of the defence in that case too.

I would, however, prefer to meet the case of alleged inconsistency head on. Consistency and logic, though inherently desirable, are not always prime characteristics of a penal code based like the Common Law on custom and precedent. Law so based is not an exact science. All the same, I feel I am required to give some answer to the question posed. If duress is available as a defence to some crimes of the most grave why, it may legitimately be asked, stop at murder, whether as accessory or principal and whether in the second or the first degree? But surely I am entitled, as in the view of the Common Sergeant in the instant case of Clarkson and Burke, to believe that some degree of proportionality between the threat and the offence must, at least to some extent, be a prerequisite of the defence under existing law. Few would resist threats to the life of a loved one if the alternative were driving across the red lights or in excess of 70 m.p.h. on the motorway. But, to use the Common Sergeant's analogy, it would take rather more than the threat of a slap on the wrist or even moderate pain or injury to discharge the evidential burden even in the case of a fairly serious assault. In such a case the "concession to human frailty" is no more than to say that in such circumstances a reasonable man of average courage is entitled to embrace as a matter of choice the alternative which a reasonable man could regard as the lesser of two evils. Other considerations necessarily arise where the choice is between the threat of death or a fortiori of serious injury and deliberately taking an innocent life. In such a case a reasonable man might reflect that one innocent human life is at least as valuable as his own or that of his loved one. In such a case a man cannot claim that he is choosing the lesser of two evils. Instead he is embracing the cognate but morally disreputable principle that the end justifies the means.

I am not so shocked as some of the judicial opinions have been at the need, if this be the conclusion, to invoke the availability of administrative as distinct from purely judicial remedies for the hardships which might otherwise occur in the most agonising cases. Even in Dudley and Stephens in 1884 when the death penalty was mandatory and frequently inflicted, the

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prerogative was used to reduce a sentence of death by hanging to one of 18 months in prison. In murder cases the available mechanisms are today both more flexible and more sophisticated. The trial judge may make no minimum recommendation. He will always report to the Home Secretary, as he did in the present case of Clarkson and Burke. The Parole Board will always consider a case of this kind with a High Court judge brought into consultation. In the background is always the prerogative and, it may not unreasonably be suggested, that is exactly what the prerogative is for. If the law seems to bear harshly in its operation in the case of a mandatory sentence on any particular offender there has never been a period of time when there were more effective means of mitigating its effect than at the present day. It may well be thought that the loss of a clear right to a defence justifying or excusing the deliberate taking of an innocent life in order to emphasise to all the sanctity of a human life is not an excessive price to pay in the light of these mechanisms. Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, "mercy killing" of a beloved partner.

Far less convincing than the argument based on consistency is the belief which appears in some of the judgments that the law must "move with the times" in order to keep pace with the immense political and social changes since what are alleged to have been the bad old days of Blackstone and Hale. I have already dealt with this argument in my respectful criticism of the dissent in Hyam

[1975] AC 55

. The argument is based on the false assumption that violence to innocent victims is now less prevalent than in the days of Hale or Blackstone. But I doubt whether this is so. We live in the age of the holocaust of the Jews, of international terrorism on the scale of massacre, of the explosion of aircraft in mid air, and murder sometimes at least as obscene as anything experienced in Blackstone's day. Indeed one of the present appeals may provide an example. I have already mentioned the so-called Moors murders. But within weeks of hearing this appeal a man was convicted at the Central Criminal Court of sending his pregnant mistress on board an international aircraft at Heathrow, with her suitcase packed with a bomb and with the deliberate intention of sending the 250 occupants, crew, passengers, mistress and all to a horrible death in mid air. I cannot forbear to say that if Abbott was wrongly decided, and had the attempt succeeded, the miscreant who did this would have been free to escape scot free had he been in a position to discharge the evidential burden on duress and had the prosecution, on the normal Woolmington principles (Woolmington v. Director of Public Prosecutions

[1935] AC 462

, 482), been unable to exclude beyond reasonable doubt the possibility of his uncorroborated word being true. I must also point out in this context that known terrorists are more and not less vulnerable to threats than the ordinary man and that a plea of duress in such a case may be all the more plausible on that account. To say this is not to cast doubt on the reliability and steadfastness of juries. Counsel for the appellants was able to say with perfect truth that, where duress in fact has been put forward in cases where it was available, juries have been commendably robust as they were in

- 13 -

the instant cases in rejecting it where appropriate. The question is not one of the reliability of juries. It is one of principle. Should the offence of duress be available in principle in such a case as that of Hindawi where, of course, it was not put forward? The point which I am at the moment concerned to make is that it is not clear to me that the observations of Blackstone and Hale, and almost every respectable authority, academic or judicial, prior to Lynch are necessarily to be regarded in this present age as obsolescent or inhumane or unjust owing to some supposed improvement in the respect for innocent human life since their time which unfortunately I am too blind to be able for myself to perceive. Still less am I able to see that a law which denies such a defence in such a case must be condemned as lacking in justice or humanity rather than as respectable in its concern for the sanctity of innocent lives. I must add that, at least in my view, if Abbott were wrongly decided some hundreds who suffered the death penalty at Nuremberg for murders were surely the victims of judicial murder at the hands of their conquerors owing to the operation of Article 8. Social change is not always for the better and it ill becomes those of us who have participated in the cruel events of the 20th century to condemn as out of date those who wrote in defence of innocent lives in the 18th century.

During the course of argument it was suggested that there was available to the House some sort of half way house between allowing these appeals and dismissing them. The argument ran that we might treat duress in murder as analogous to provocation, or perhaps diminished responsibility, and say that, in indictments

for murder, duress might reduce the crime to one of manslaughter. I find myself quite unable to accept this. The cases show that duress, if available and made out, entitles the accused to a clean acquittal, without, it has been said, the "stigma" of a conviction. Whatever other merits it may have, at least the suggestion makes nonsense of any pretence of logic or consistency in the criminal law. It is also contrary to principle. Unlike the doctrine of provocation, which is based on emotional loss of control, the defence of duress, as I have already shown, is put forward as a "concession to human frailty" whereby a conscious decision, it may be coolly undertaken, to sacrifice an innocent human life is made as an evil lesser than a wrong which might otherwise be suffered by the accused or his loved ones at the hands of a wrong doer. The defence of diminished responsibility (which might well, had it then been available to Dudley and Stephens, have prevailed there) is statutory in England though customary in Scotland, the law of its origin. But in England at least it has a conceptual basis defined in the Homicide Act 1957 which is totally distinct from that of duress if duress be properly analysed and understood. Provocation (unique to murder and not extending even to "section 18" offences) is a concession to human frailty due to the extent that even a reasonable man may, under sufficient provocation temporarily lose his self control towards the person who has provoked him enough. Duress, as I have already pointed out, is a concession to human frailty in that it allows a reasonable man to make a conscious choice between the reality of the immediate threat and what he may reasonably regard as the lesser of two evils. Diminished responsibility as defined in the Homicide Act 1957 depends on abnormality of mind impairing mental responsibility. It may overlap duress or even necessity. But it is not what we are discussing in the instant appeal.

- 14 -

I must add that, had I taken a different view, in the cases of Bannister and Howe and, for rather different reasons, in the case of Burke, I would have gone on to consider the questions whether in any of these appeals the appellants had discharged the evidential burden in duress, or whether, if they had, on the facts described in the judgment of the Lord Chief Justice, the proviso should not have been applied in every case. The case of Clarkson is surely beyond dispute on the assumption that the second certified question is not answered in his favour. But whatever may be the characteristics of duress, even on the existing law the ingredients of immediacy and absence of voluntary association (see Reg. v. Fitzpatrick [1977] N.I. 20), must be essential components of the evidential burden more or less on the lines of the draft bill annexed to the Law Commission Report No. 83, to which I have referred above. Even apart from this and on the assumption that the matter should properly have been left to the jury, I am rather more than doubtful whether any properly instructed jury could have acquitted on the murder charges in either of the instant cases or on the facts of Abbott. It is not necessary to express a concluded opinion on this since, for the reasons I have adumbrated above, I consider that these appeals should be dismissed and the certified questions answered respectively(1) no,

(2) yes,

(3) yes. If so, the questions relating to the proviso and evidential burden do not arise. So far as I have indicated, the decision of this House in Lynch

[1975] AC 653

should be regarded as unsatisfactory and the law left as it was before Lynch came up for decision. The decision in Abbott

[1977] AC 755

should be followed, and, unless it can be distinguished on the facts, that in Richards [1974] Q.B. 776 should be overruled.

LORD BRIDGE OF HARWICH

My Lords,

The defence of duress, as a general defence available at common law which is sufficient to negative the criminal liability of a defendant against whom every ingredient of an offence has otherwise been proved, is difficult to rationalise or explain by reference to any coherent principle of jurisprudence. The theory that the party acting under duress is so far deprived of volition as to lack the necessary criminal intent has been clearly shown to be fallacious: Director of Public Prosecutions for Northern Ireland v. Lynch

[1975] AC 653

, 7Q9H-711A per Lord Edmund-Davies. No alternative theory seems to provide a wholly satisfactory foundation on which the defence can rest. The law, therefore, might have developed more logically had it adopted the view of Stephen, expressed in his History of the Criminal Law of England (1883), that duress should be a matter, not of defence, but of mitigation. If this course had been followed, it might sensibly have led to the further development that, in the case of murder, duress, like provocation, would have sufficed to reduce the offence from murder to manslaughter. But that is not the law and, though it is open to Parliament to decide that it ought to be, that course is not open to us. We have to accept the law as we find it and, given the lack of any clear underlying principle to which we can refer, we must not, I think, be wholly surprised if the solution to

- 15 -

the problem posed by the first certified question arising in these appeals fails to remove all the anomalies which some may discern in this field of the law.

If we take the majority decisions of this House in Lynch and of the Privy Council in Abbott v. The Queen

[1977] AC 755

, as establishing the present law, duress is a complete defence to a murderer otherwise guilty as a principal in the second degree, it is no defence to a murderer guilty as a principal in the first degree. Technically, of course, the two decisions were made in two distinct jurisdictions, though three Lords of Appeal (Lord Wilberforce, Lord Kilbrandon and Lord Edmund-Davies) were party to both. In this situation it is an odd quirk of the system operated by two ultimate appellate tribunals, each deciding by a majority, that their two decisions should have the combined effect of affirming a distinction which four out of the seven participants in the decisions (Lord Simon of Glaisdale and Lord Kilbrandon in Lynch, Lord Wilberforce and Lord Edmund-Davies in Abbott) expressly rejected as untenable. The only speech which gives any positive, even if somewhat lukewarm, support to the distinction is that of Lord Morris of Borth-y-Gest in Lynch. He said, at p. 671:

"The issue in the present case is therefore whether there is any reason why the defence of duress, which in respect of a variety of offences has been recognised as a possible defence, may not also be a possible defence on a charge of being a principal in the second degree to murder. I would confine my decision to that issue. It may be that the law must deny such a defence to an actual killer, and that the law will not be irrational if it does so."

Later, referring to the "actual killer," he said:

"There, I think, before allowing duress as a defence it may be that the law will have to call a halt."

Lord Morris supported the distinction by illustrations of theoretical cases where principals in the second degree (as in the case of Lynch itself) might be seen as playing a relatively minor role in a murderous enterprise. These passages are naturally referred to in the majority judgment in Abbott, but this hardly strengthens support for the distinction when one remembers, first, that Lord Kilbrandon was one of the majority, secondly, that the essential attitude of the majority in Abbott to the decision in Lynch is expressed by saying that:

"... their Lordships, whilst loyally accepting the decision in Lynch's case, are certainly not prepared to extend it."

As is pointed out in Smith and Hogan, Criminal Law, 5th ed. (1983), p. 211 there is no necessary correspondence between degrees of culpability of parties to a murder and the technical distinction between principals in the first and second degrees, which would make the latter a rational cut-off point at which the defence of duress ceases to be available. My noble and learned friend, Lord Griffiths, gives cogent examples to illustrate this. I can find nothing whatever to be said for leaving the law as it presently stands. Ineluctably, as it seems to me, we must either move forward and affirm the view of the minority in Abbott that duress is available as a defence to murder generally, or depart from Lynch and restore the law as it was generally accepted before Lynch, whereby duress was not a defence available to any party otherwise guilty of murder.

- 16 -

All other considerations apart, I should myself have found a sufficient reason for deciding in favour of the latter course in the consideration that it was never open to the House in its judicial capacity to make such a fundamental reform of the law as the introduction of duress as a defence to murder involved. The passages in Lynch in the speeches to this effect of Lord Simon of Glaisdale (695D-696C) and of Lord Kilbrandon (699H-701B) seem to me to carry conviction. But that conviction is now immensely strengthened by the knowledge that Parliament, even against the background of the plainly unsatisfactory present state of the law, has in ten years taken no action on the Report of the Law Commission, No. 83. If duress is now to be made available generally as a defence to murder, it seems to me incontrovertible that the proper means to effect such a reform is by legislation such as that proposed by the Law Commission. Not only is it for Parliament to decide whether the proposed reform of the law is socially appropriate, but it is also by legislation alone, as opposed to judicial development, that the scope of the defence of duress can be defined with the degree of precision which, if it is to be available in murder at all, must surely be of critical importance.

My Lords,

I have had the advantage of reading in advance the speeches of my noble and learned friends, Lord Griffiths and Lord Mackay of Clashfern. I entirely agree with them and gratefully adopt their fuller reasoning, in addition to my own short observations, as leading to the conclusion that the appeals should be dismissed and the first certified question answered in the negative. I would wish to emphasise in particular my concurrence with Lord Griffiths in the weight he attaches to the opinion of Lord Lane C.J. as expressed in the judgment of the Court of Appeal (Criminal Division) appealed against.

For the reasons given in the speeches of my noble and learned friends, the Lord Chancellor and Lord Mackay of Clashfern, I would answer the second and third certified questions in the affirmative.

LORD BRANDON OF OAKBROOK

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mackay of Clashfern. I agree with it, and for the reasons which he gives I would dismiss the appeal.

I cannot pretend, however, that I regard the outcome as satisfactory. It is not logical, and I do not think it can be just, that duress should afford a complete defence to charges of all crimes less grave than murder, but not even a partial defence to a charge of that crime. I say nothing as to treason, for that is not here in issue. I am persuaded, nevertheless, to agree with my noble and learned friend by three considerations. First, it seems to me that, so far as the defence of duress is concerned, no valid distinction can be drawn between the commission of murder by one who is a principal in the first degree and one who is a principal in

- 17 -

the second degree. Secondly, I am satisfied that the common law of England has developed over several centuries in such a way as to produce the illogical, and as I think unjust, situation to which I have referred. Thirdly, I am convinced that, if there is to be any alteration in the law on such an important and controversial subject, that alteration should be made by legislation and not by judicial decision.

LORD GRIFFITHS

My Lords,

As a general rule I support the view that in criminal appeals to this House it is desirable wherever possible to have one speech, so that the judges and practitioners may turn to one source for authoritative guidance. Clarity, certainty and, wherever possible, simplicity are invaluable attributes of the criminal law which must be understood by laymen and especially by jurymen as well as lawyers. This will usually be better achieved by the distillation of the consensus view of the House in one speech rather than leaving judges of first instance to pick their way through five speeches in an attempt to apply the principle of the decision to the trial currently taking place before them. There are, however, exceptions to every rule and as I believe that we should now depart from the decision of this House in Director of Public Prosecutions for Northern Ireland v. Lynch

[1975] AC 653

, I feel that I should shortly state the reasons for my opinion.

For centuries it was accepted that English criminal law did not allow duress as a defence to murder. It was so stated in Hale's Pleas of the Crown, repeated by Blackstone in his Commentaries, and so taught by all the authoritative writers on criminal law. It was accepted by those responsible for drafting the criminal codes for many parts of the British Empire and they provided, in those codes, that duress should not be a defence to murder. In Reg. v. Tyler and Price (1838) 8 C. & P. 616, Denman C.J. told the jury in emphatic language that they should not accept a plea of duress that was put up in defence to a charge of murder against those who were not the actual killers. Fifty years later, in Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273, the defence of necessity was denied to the men who had killed the cabin boy and eaten him in order that they might survive albeit only Stephens was the actual killer. The reasoning that underlies that decision is the same as that which denies duress as a defence to murder. It is based upon the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another's life.

There are surprisingly few reported decisions on duress but it can not be gainsaid that the defence has been extended, particularly since the second war, to a number of crimes. I think myself it would have been better had this development not taken place and that duress had been regarded as a factor to be taken into account in mitigation as Stephen suggested in his History of the Criminal Law in England (1883). However, as Lord Morris of

- 18 -

Borth-y-Gest said in Director of Public Prosecutions for Northern Ireland v. Lynch

[1975] AC 653

, 670, it is too late to adopt that view. And the question now is whether that development should be carried a step further and applied to a murderer who is the actual killer, and if the answer to this question is no, whether there is any basis upon which it can be right to draw a distinction between a murderer who did the actual killing and a murderer who played a different part in the design to bring about the death of the victim.

The first suggestion that the defence of duress might be available to a person guilty of murder appears to have emerged in Reg. v. Kray (Ronald)

(1969) 53 Cr.App.R. 569

, 576-578 in the judgment of the Court of Appeal delivered by Widgery L.J.

It is instructive to see the circumstances in which it arose:

"We now consider the effect on these two applicants (the Kray brothers) of the defence put forward by Anthony Barry. The case against Anthony Barry was that he was an accessory before the fact to the McVitie murder, and the Crown relied primarily on his having carried a gun from the Regency Club to Evering Road, knowing Reginald Kray intended to use it in the murder of McVitie. Barry admitted from the outset that he had done this, but pleaded that he had acted under duress being in fear for the safety of himself and his family if he failed to carry out the order of the Krays.

"In support of this defence Barry gave evidence of an immediate threat made in relation to his unwillingness to carry the gun and also to prior conduct of the Kray twins which, he said, had placed him in terror of them. The immediate threat was said to have been a message transmitted from Reginald Kray by Hart to the effect that, if Barry would not take the gun to Evering Road, the Krays would come back to the Regency Club; a message which Barry interpreted as meaning that he would get hurt as well as McVitie. The general background of terror was supported by evidence of previous threats and acts of violence committed by the Krays or their henchmen at the Regency Club and similar acts which had been reported to Barry, but which he had not seen.

"Barry's counsel indicated the general nature of his defence at an early stage in the trial, and counsel for the other accused were naturally apprehensive lest this should let in a great deal of otherwise inadmissible evidence detrimental to the Krays. An attempt was made at the outset to get a ruling as to the admissibility of this evidence, but the judge had no information on which to rule and wisely declined. Barry's counsel attempted to cross- examine along these lines when the Crown witnesses to the Cornell murder were giving evidence, but he made little progress in the face of objections. Later, however, a substantial body of evidence of the vicious and violent reputation of the Kray twins was let in either during cross- examination of Crown witnesses or in Barry's own evidence and that of his witnesses.

- 19 -

"Mr. Platts-Mills contended before us that the whole of this evidence was inadmissible since Barry had never laid an adequate foundation for the defence of duress. He concedes that although duress is not available in murder to a person charged as a principal it is available to an accessory, but he submits the accessory must show he had no alternative and in this case Barry had the alternative of taking the gun to the police instead of Evering Road. Accordingly, says Mr. Platts-Mills, Barry never had a viable defence of duress and the judge should have discharged the jury as soon as this became apparent.

"Mr. Wrightson takes a broader view and accepts that Barry had a valid defence if his will was so overcome by threats and fear that he had no independent choice and ceased to be an independent actor. He accepts that it was open to Barry to support this defence by evidence of threats and violent conduct within his own knowledge, and also by recounting incidents of which he had heard and the news of which had affected his mind. Mr. Wrightson's complaint is that the evidence admitted went beyond these limits and related to events early in 1966 which were not proved to have come to Barry's notice. He further complains that on occasions a witness called to prove that Barry had been told of a particular incident went on to testify to the truth of that information, which Mr. Wrightson submits was irrelevant and inadmissible since it did not go to the state of Barry's mind.

"It is evident to us that both the learned judge and counsel for the Crown did their best to confine this evidence to the limits contended for by Mr. Wrightson, but this was not always possible. Having examined all such incidents to which our attention has been drawn, we are satisfied that they give rise to no miscarriage of justice and do not render the verdict unsafe or unsatisfactory. We are further satisfied that Barry had a viable defence on the basis left to the jury 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."

Like the Lord Chancellor, I regard this decision as of little authority. The decision proceeded on a concession by counsel that the defence of duress was available to an accessory before the fact to murder and I have myself doubts about the correctness of allowing the defence at all if, as it appears, Anthony Barry had got himself into this predicament by reason of his association with known violent criminals (see Reg. v. Fitzpatrick [1977] N.I. 20). It is, however, understandable that the judge would not wish to limit the full extent of the gangleader's villainy being laid before the jury.

Widgery L.J. who had given the judgment in Reg. v. Kray (Ronald)

(1969) 53 Cr. App.R. 569

, repeated the same qualification in Reg. v. Hudson

[1971] 2 QB 202

, when allowing the defence in a case of perjury he said: "... it is clearly established that duress provides a defence in all offences including perjury (except

- 20 -

possibly treason or murder as a principal)," but apart from saying that the court had been referred to much authority he gave no reason for limiting the exception to murder as a principal.

In Director of Public Prosecution for Northern Ireland v. Lynch [1975] A.C. 633, of the majority who held that duress should be available to an aider and abettor to a murder, in that case the driver of the getaway car, Lord Morris of Borth-y-Gest said of the actual killer at p. 671:

"... the person is told that to save his life he himself must personally there and then take an innocent life. It is for him to pull the trigger or otherwise personally to do the act of killing. There, I think, before allowing duress as a defence it may be that the law will have to call a halt."

Lord Wilberforce said at p. 685:

"I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise."

Lord Edmund-Davies, at p. 715, foreshadowed his opinion in Abbott v. The Queen

[1977] AC 755

, by citing a passage from Smith and Hogan Criminal Law, 3rd ed., p. 166:

"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."

To illustrate this one only has to point to the case of a "contract" killing.

Thus it seems to me, my Lords, that even after Lynch the whole weight of authority denied the defence of duress to the actual killer. This view had the unanimous support of the Supreme Court of South Australia in Reg. v. Brown and Merely [1968] S.A.S.R. 467, when the majority denied the defence of duress to an aider and abettor to murder and Bray C.J., who dissented on this issue, nevertheless said at p. 499:

"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."

In Abbott v. The Queen

[1977] AC 755

, the majority in the Privy Council applied the law of duress in accordance with English authority and denied it as a defence to a murderer who took part in the actual killing. The minority would have extended the defence even to the actual killer, pointing out the illogicality of allowing it to the principal in the second degree or the aider and abettor and denying it to the principal in the first degree.

Since that time the whole question of duress has been studied by the Law Commission (see Law Commission Report No. 83 on "defences of general application", dated 27 July 1977). The report sets out the arguments for and against the defence and deals in particular with whether it should apply to murder. They balanced the argument based upon the sanctity of human life that denies the defence to a murderer against the argument urged by the majority in Director of Public Prosecutions for Northern Ireland v. Lynch

[1975] AC 653

, that the law should not demand more than human frailty can sustain. They preferred the latter argument and accordingly recommended that a defence of duress

- 21 -

should be available to all crimes including murder. But in the draft Bill they annexed to their report they prescribed the defence in far narrower terms than it had hitherto been defined by the judges and they introduced conditions which clearly go beyond the bounds of judicial creativity and would require legislation. It is worth reminding oneself of the first two clauses:

"1. - (1) The following provisions of this section provide a defence (referred to below in this Act as 'the defence of duress') in place of the defence of duress at common law (which is consequently abolished except in relation to offences committed before the passing of this Act).

Subject to section 2 and subsection (5) below, a person shall not be guilty of an offence by virtue of any action taken by him under duress.

A person shall be regarded for the purposes of this section as having taken any action under duress if he was induced to take it by any threat of harm to himself or another and at the time when he took it he believed (whether or not on reasonable grounds) -

that the harm threatened was death or serious personal injury (physical or mental);

that the threat would be carried out immediately if he did not take the action in question or, if not immediately, before he could have any real opportunity of seeking official protection; and

( c ) that there was no other way of avoiding or preventing the harm threatened;

provided, however, that in all the circumstances of the case (including what he believed with respect to the matters mentioned in paragraphs ( a ) to ( c ) above and any of his personal circumstances which are relevant) he could not reasonably have been expected to resist the threat.

(4) The fact that any official protection which might have been available in the circumstances would or might not have been effective to prevent the harm threatened is immaterial for the purposes of subsection (3)( b ) above.

The defence of duress does not apply in any case where on the occasion in question the defendant was voluntarily and without reasonable cause in a situation in which he knew he would or might be called upon to commit the offence with which he is charged or any offence of the same or a similar character under threat of death or serious personal injury (whether to himself or to anyone else) if in the event he should refuse to do so.

In this section 'official protection' means the protection of the police, of the authorities governing any prison or other custodial institution, or of any other similar authority concerned in the maintenance of law and order.

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(7) The fact that one party to any action is exempt by virtue of this section from criminal liability for that action shall not affect the question whether anyone else is guilty of an offence by virtue of being a party to that action.

2. - (1) On a trial on indictment the defendant shall not, without leave of the court, be entitled to rely on the defence of duress unless he has served on the prosecutor at least seven clear days before the hearing a notice in writing

( a ) indicating his intention to rely on the defence;

( b ) giving particulars of the words or conduct constituting the threat which induced him to take the action in question; and

(c) giving any information then in his possession to identify or assist in identifying any persons making the threat and any persons other than himself on whom the harm threatened would have been inflicted if the threat had been carried out.

(2) In any proceedings for an offence it shall be for the prosecution to prove that the defence of duress does not apply, but only if there is sufficient evidence to raise an issue with respect to whether or not it does."

I can not refrain from commenting that if duress is introduced as a merciful concession to human frailty it seems hard to deny it to a man who knows full well that any official protection he may seek will not be effective to save him from the threat of death under which he has acted, but such is the effect of clauses l(3)(b) and 1(4) when read together.

But what, I think, is significant is the fact that although the report clearly recognised that English law did not extend the defence of duress to the actual killer and recommended that the law should be changed, Parliament never acted upon this advice. The report was laid before Parliament by the Lord Chancellor in July 1977 but no steps have been taken to introduce a Bill upon the lines they recommended. This must at least be some indication that the community at large are not pressing for a change in the law to remedy a perceived injustice.

Against this background are there any present circumstances that should impel your Lordships to alter the law that has stood for so long and to extend the defence of duress to the actual killer? My Lords, I can think of none. It appears to me that all present indications point in the opposite direction. We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it. The sanctity of human life lies at the root of this ideal and I would do nothing to undermine it, be it ever so slight.

On this question your Lordships should, I believe, accord great weight to the opinion of the Lord Chief Justice who by virtue of his office and duties is in far closer touch with the

- 23 -

practical application of the criminal law and better able to evaluate the consequence of a change in the law than those of us who sit in this House. This is what he had to say in his judgment in this case [1986] Q.B. 626, 641:

"It is true that to allow the defence to the aider and abettor but not to the killer may lead to illogicality, as was pointed out by this Court in Reg. v. Graham (Paul) [1982] 1 W.L.R. 294, where the question in issue in the instant case was not argued, but that is not to say that any illogicality should be cured by making duress available to the actual killer rather by removing it from the aider and abettor.

"Assuming that a change in the law is desirable or necessary, we may perhaps be permitted to express a view. The whole matter was dealt with in extenso by Lord Salmon in his speech in Abbott v. The Queen [1977] AC 755 to which reference has already been made. He dealt there with the authorities. It is unnecessary for us in the circumstances to repeat the citations which he there makes. It would, moreover, be impertinent for us to try to restate in different terms the contents of that speech with which we respectfully agree. Either the law should be left as it is or the defence of duress should be denied to anyone charged with murder, whether as a principal in the first degree or otherwise. It seems to us that it would be a highly dangerous relaxation in the law to allow a person who has deliberately killed, maybe a number of innocent people, to escape conviction and punishment altogether because of a fear that his own life or those of his family might be in danger if he did not; particularly so when the defence of duress is so easy to raise and may be so difficult for the prosecution to disprove beyond reasonable doubt, the facts of necessity being as a rule known only to the defendant himself. That is not to say that duress may not be taken into account in other ways, for example by the parole board.

"Even if, contrary to our views, it were otherwise desirable to extend the defence of duress to the actual killer, this is surely not the moment to make any such change, when acts of terrorism are commonplace and opportunities for mass murder have never been more readily to hand."

My Lords,

in my view we should accept the advice of the Lord Chief Justice and the judges who sat with him, and decline to extend the defence to the actual killer. If the defence is not available to the killer what justification can there be for extending it to others who have played their part in the murder. I can, of course, see that as a matter of commonsense one participant in a murder may be considered less morally at fault than another. The youth who hero-worships the gangleader and acts as lookout man whilst the gang enter a jeweller's shop and kill the owner in order to steal is an obvious example. In the eyes of the law they are all guilty of murder, but justice will be served by requiring those who did the killing to serve a longer period in prison before being released on licence than the youth who acted as lookout. However, it is not difficult to give examples where more moral

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fault may be thought to attach to a participant in murder who was not the actual killer; I have already mentioned the example of a contract killing, when the murder would never have taken place if a contract had not been placed to take the life of the victim. Another example would be an intelligent man goading a weakminded individual into a killing he would not otherwise commit.

It is therefore neither rational nor fair to make the defence dependent upon whether the accused is the actual killer or took some other part in the murder. I have toyed with the idea that it might be possible to leave it to the discretion of the trial judge to decide whether the defence should be available to one who was not the killer, but I have rejected this as introducing too great a degree of uncertainty into the availability of the defence. I am not troubled by some of the extreme examples cited in favour of allowing the defence to those who are not the killer such as a woman motorist being highjacked and forced to act as getaway driver, or a pedestrian being forced to give misleading information to the police to protect robbery and murder in a shop. The short, practical answer is that it is inconceivable that such persons would be prosecuted, they would be called as the principal witnesses for the prosecution, and if by any chance they were prosecuted.

As I can find no fair and certain basis upon which to differentiate between participants to a murder and as I am firmly convinced that the law should not be extended to the killer, I would depart from the decision of this House in Director of Public Prosecutions for Northern Ireland v. Lynch

[1975] AC 653

and declare the law to be that duress is not available as a defence to a charge of murder, or to attempted murder. I add attempted murder because it is to be remembered that the prosecution have to prove an even more evil intent to convict of attempted murder than in actual murder. Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to prove an intent

to cause really serious injury.

It can not be right to allow the defence to one who may be more intent upon taking a life than the murderer. This leaves, of course, the anomaly that duress is available for the offence of wounding with intent but not to murder if the victim dies subsequently. But this flows from the special regard that the law has for human life, it may not be logical but it is real and has to be accepted.

I do not think that your Lordships should adopt the compromise solution of declaring that duress reduces murder to manslaughter. Where the defence of duress is available it is a complete excuse. This solution would put the law back to lines upon which Stephens suggested it should develop by regarding duress as a form of mitigation. English law has rejected this solution and it would be yet another anomaly to introduce it for the crime of murder alone. I would have been more tempted to go down this road if the death penalty had remained for murder. But the sentence for murder although mandatory and expressed as imprisonment for life, is in fact an indefinite sentence, which is kept constantly under review by the parole board and the Home Secretary with the assistance of the Lord Chief Justice and the trial judge. I have confidence that through this machinery the

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respective culpability of those involved in a murder case can be fairly weighed and reflected in the time they are required to serve in custody.

I have had the advantage of reading the speeches of the Lord Chancellor and Lord Mackay of Clashfern and I agree with the opinions they have expressed on the second and third questions raised before your Lordships.

LORD MACKAY OF CLASHFERN

My Lords,

At the request of all parties to the appeals by Burke, Howe and Bannister, they were conjoined and have been heard together. They arise out of two separate cases and the issues in each are similar. The appeal of Clarkson arises out of one of these cases and by agreement of the parties to it and the other appeals it has also been heard with the others.

The material facts in Burke's case are, that on 9 July 1983 Burke shot dead one Henry Botton at point blank range with a sawn off shotgun. The victim was due to give evidence at Inner London Crown Court on 18 July 1983 in a trial in which Burke's co-defendant, William Clarkson, was accused with others of conspiracy to handle stolen goods. The victim was to have given evidence in support of the defence of duress by Clarkson, which was raised by one of Clarkson's co-defendants. Burke's defence at his trial was that he had agreed to shoot the victim only because of his fear that Clarkson would kill him if he did not, but when it came to the event, the gun actually went off accidentally and the killing was therefore unintentional and amounted to no more than manslaughter. At the trial it was submitted on behalf of Burke that he was entitled to be acquitted completely of murder and manslaughter by reason of duress and that if this submission failed he was entitled to be acquitted of murder and found guilty of manslaughter by reason of accident in an unlawful act. The judge who presided at the trial, the then Common Sergeant, Judge Tudor Price, directed the jury that Burke, as the actual killer, was not entitled to rely upon the defence of duress to the charge of murder but since he considered there was evidence in support of the defence of duress he left it to the jury in respect of manslaughter. He further directed the jury that they could not convict Clarkson of murder unless they convicted Burke of murder and that if Burke was guilty of manslaughter then Clarkson could be convicted, at most, only of manslaughter and that if the appellant was acquitted on the grounds of duress then Clarkson, the author of the duress, must be convicted of manslaughter.

Howe and Bannister were indicted together with two other men, Murray and Bailey, at Manchester Crown Court on two counts of murder and one of conspiracy to murder contrary to section 1 of the Criminal Law Act 1977. The particulars of the first count referred to the murder of Mitchell Elgar on 10 October 1983, the particulars of the second count referred to the murder of Martin Pollitt on 11 October 1983 and the conspiracy to murder

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related to a conspiracy on 12 October 1983 to murder John Redfern.

In October 1983 Howe and Bailey were aged 19, Bannister was aged 20 and Murray was 35. Howe had one conviction for a motoring offence. Bannister had convictions for dishonesty offences but none for violence. Murray had 25 previous court appearances including appearances for offences of violence and in 1974 was sentenced to a term of eight years' imprisonment for offences of assault with intent to rob and robbery. Bannister met Murray whilst at Risley Remand Centre. Howe was introduced to Murray by Bailey and all became acquainted with each other for a period of four days prior to the first murder and were in each other's company almost all the time from the period 6 October to 13 October. Murray was the dominant figure. He was dishonest, powerful, violent and sadistic. Through acts of actual violence or threats of violence, Murray gained control of each of the appellants who became fearful of him. Mitchell Elgar, referred to in count 1, was killed at a remote spot in the Goyt valley, Derbyshire. His death was preceded by a savage kicking and beating, and acts of torture and sexual perversion perpetrated by Bannister, Howe and Bailey. The coup de grace was executed by Bailey who strangled Mitchell Elgar with a headlock. Before the attack, Murray had told Howe and Bannister that Elgar was a 'grass' and was to be killed and Bannister was threatened with violence by Murray if he did not give Mitchell Elgar "a bit of a battering." Martin Pollitt referred to in count 2 was picked up by the four men, to whom I have referred, on 11 October 1983 and they took him to the same place as that in which Mitchell Elgar was killed on the previous day. Murray told Howe and Bannister to kill Pollitt, which they did by strangling him with Bannister's shoelace, each holding one end. In relation to count 3, the same procedure had been followed. However Redfern, the intended victim, suspected something was afoot and managed to escape from what otherwise would, have inevitably been his death. Howe and Bannister each admitted to being parties to the killings and the conspiracy to kill in the circumstances I have described but they alleged that they acted in fear of their own lives because of the conduct of Murray. They alleged that they feared that Murray would treat them in the same way as Mitchell Elgar had been treated if they did not comply with his directions.

At the trial, counsel for the prosecution were content to assent to the proposition that in respect of the murder of Mitchell Elgar death had been caused by Bailey strangling the victim although the kicks and punches would have resulted in death moments later even in the absence of strangulation. On that basis, the prosecution were content that the judge who presided at the trial should leave the defence of duress to the jury in respect of count 1 and also in respect of count 3. On count 2, the judge rejected the submissions made on behalf of both appellants that the defence of duress should be allowed.

In directing the jury to consider the plea of duress in respect of counts 1 and 3, the judge directed the jury that the test to be applied was whether "the threat was of such gravity that it might well have caused a reasonable man placed in the same situation as the defendants to act as the defendants did" and to pose the question "would a sober person of reasonable firmness

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sharing the defendants' characteristics have responded to the threats by taking part in the killing."

Burke was convicted of murder and Howe and Bannister were convicted on both counts of murder with which they were charged and also on the count of conspiracy to murder. All appealed to the Court of Appeal (Criminal Division) [1986] Q.B. 626 where the appeals were heard together and dismissed. In dismissing the appeals the court certified three points of law of general public importance were involved in the decisions to dismiss

the appeals, namely:

Is duress available as a defence to a person charged with murder as a principal in the first degree (the actual killer)?

Can the one who incites or procures by duress another to kill or to be a party to a killing be convicted of murder if that other is acquitted by reason of duress?

The Court of Appeal granted leave to appeal against their decision to this House. Clarkson's appeal was also heard by the Court of Appeal (Criminal Division) at the same time as the others was also dismissed and leave to appeal to this House was granted. Although he is concerned in the first question already mentioned as a basis for his concern in the second, which arises only if Burke is successful on the first, Clarkson's appeal is concerned with the second question in respect of which he contends that if Burke was acquitted by reason of duress he could not be convicted of murder as one who had incited or procured by duress Burke to kill or to be a party to a killing.

It will be convenient to deal with the matters arising in these appeals by reference to the three questions of law which have been certified and the order in which the questions are posed by the Court of Appeal.

Question 1

The question whether duress is available as a defence in law to a person charged with murder as a principal in the first degree (actual killer) has not been the subject of a previous decision of this House. The matter received consideration in this House in Director of Public Prosecutions for Northern Ireland v. Lynch

[1975] AC 653

Lynch had driven a motor car containing a group of the I.R.A. in Northern Ireland on an expedition in which they shot and killed a police officer. He was tried along with two other men on a count that he murdered the police constable and was convicted and sentenced to life imprisonment. This House, by a majority of three to two, allowed Lynch's appeal and ordered a new trial pursuant to

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section 13 of the Criminal Appeal (Northern Ireland) Act 1968. At the new trial Lynch was allowed to plead the defence of duress but this defence was rejected by the jury and Lynch was again convicted.

It was accepted by the majority of the House in Lynch that at that time the balance of such judicial authority as existed was against the admission of the defence of duress in cases of first degree murder. The writers were generally agreed in saying that the defence was not available in murder although later writers appear to have said so following Hale. The references are Hale's Pleas of the Crown (1736), vol. 1, pp. 51, 434; East's Pleas of the Crown (1803), vol. 1, p. 294; Blackstone, Commentaries on the Laws of England, 1809 ed., vol. 4, p. 30; Glanville Williams Criminal Law, 2nd ed. (1961), p. 759, para. 247; Russell on Crime, 12th ed. (1964), vol. 1, pp. 90-91; Smith and Hogan Criminal Law, 3rd ed. (1973) pp. 166-167. Since the fundamental passage is that from Hale at p. 51, I think it is appropriate to quote it in full:

"If a man be menaced with death, unless he will commit an act of treason, murder, or robbery, the fear of death does not excuse him, if he commit the fact; for the law hath provided a sufficient remedy against such fears by applying himself to the courts and officers of justice for a writ or precept de securitate pacis.

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: but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant; for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature and necessity, hath made him his own protector cum debito moderamine inculpatae tutelae, as shall be farther shewed, when we come to the chapter of homicide se defendendo."

Counsel for the appellants, Burke, Bannister and Howe, in his very detailed and careful submission accepted this position as reflecting the law up to the time of Lynch. Since that time, on this question there has been the decision of the Privy Council in Abbott v. The Queen [1977] A.C. 755, a majority decision in which the minority consisted of Lord Wilberforce and Lord Edmund-Davies who, along with Lord Morris of Borth-y-Gest, had constituted the majority in the Lynch's case. Counsel for these appellants submitted that your Lordships should hold that the reasoning of the majority in the Lynch case should be applied and extended to cover the present cases. He recognised that this would involve a change in the law on this matter but argued that the change was one which your Lordships should properly

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decide to make as the consequence of the decision of the House in Lynch.

In approaching this matter, I look for guidance to Lord Reid's approach to the question of this House making a change in the prevailing view of the law in Myers v. Director of Public Prosecutions [1965] A.C. 1001, 1021-1022, where he said:

"I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of other parts of the existing law of hearsay susceptible of similar treatment, and we shall probably have a series of appeals in cases where the existing technical limitations produce an unjust result. If we are to give a wide interpretation to our judicial functions questions of policy cannot be wholly excluded, and it seems to me to be against public policy to produce uncertainty. The only satisfactory solution is by legislation following on a wide survey of the whole field, and I think that such a survey is overdue. A policy of make do and mend is no longer adequate. The most powerful argument of those who support the strict doctrine of precedent is that if it is relaxed judges will be tempted to encroach on the proper field of the legislature, and this case to my mind offers a strong temptation to do that which ought to be resisted."

In the present appeal, as I have said, the reason advanced on behalf of the appellants to allow the defence of duress to persons in the appellants' position as the actual killers is based upon the assertion that this House in Lynch allowed it to a person who was charged with murder as a principal in the second degree otherwise described as an aider and abettor and that there was no relevant distinction between that case and the case of the actual killer. He submitted that the reasoning of the majority in the Lynch case when logically applied to the circumstances of the present case led to the result that the defence of duress should have been admitted here and that the appeal should accordingly be allowed.

Counsel for the Crown submitted that the appeal should be refused, that the existing law did not allow the defence of duress to an actual killer or principal in the first degree

- 30 -

and that ii no proper distinction could be made between this and the Lynch case the House should decline to follow Lynch because in his submission the reasoning in Lynch was flawed.

The first question accordingly that arises in this appeal is whether any distinction can be made between this case and the Lynch case. It is clear from the speech of Lord Morris of Borth-y-Gest that he did not regard it as a necessary consequence of his view that the defence of duress should be available to a principal in the first degree. At [1975] A.C. 653, 671, he says:

"The issue in the present case is therefore whether there is any reason why the defence of duress, which in respect of a variety of offences has been recognised as a possible defence, may not also be a possible defence on a charge of being a principal in the second degree to murder. I would confine my decision to that issue. It may be that the law must deny such a defence to an actual killer, and that the law will not be irrational if it does so.

"Though it is not possible for the law always to be worked out on coldly logical lines there may be manifest factual differences and contrasts between the situation of an aider and abettor to a killing and that of the actual killer."

He goes on to distinguish the case of a person in the position of an aider and abettor who saves his own life at a time when the loss of another life is not a certainty with the position of a person who is told that to save his life he must himself personally there and then take an innocent life. There, says Lord Morris at pp. 671-672:

"I think, before allowing duress as a defence it may be that the law will have to call a halt. May there still be force in what long ago was said by Hale? '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's Pleas of the Crown, vol. 1, p. 51).

"Those words have over long periods of time influenced both thought and writing but I think that their application may have been unduly extended when it is assumed that they were intended to cover ail cases of accessories and aiders and abettors."

Lord Wilberforce at p. 685 said:

"I would decide that the defence is in law admissible in a case of aiding and abetting murder, and so in the present case. I would leave cases of direct

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killing by a principal in the first degree to be dealt with as they arise."

Lord Edmund-Davies at p. 715, referring to the opinion of Bray C.J. in Reg. v. Brown and Morley [1968] S.A.S.R. 467, said:

"His conclusion, at 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 any 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.'

"It appears to me, with respect, that the reliance placed by Bray C.J. on Sephakela's case is misplaced, though I concur when he says, at p. 496, that:

'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.' As to the actual killer, while I naturally seek to refrain from prejudging future cases, I think it right to say that I agree with the observation of Smith and Hogan, Criminal Law, 3rd ed. p. 166 that; '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."

In my opinion, it is plain from these quotations that the majority of this House in Lynch, and particularly Lord Morris, were reaching a decision without committing themselves to the view that the reasoning which they had used would apply to an actual killer. To take one example, it would have been impossible to cite Bray C.J. in support of the proposition that the defence of duress should be allowed in a charge of murder unless this distinction had been taken.

While therefore Lynch was decided by reasoning which does not extend to the present case, the question remains whether there is a potential distinction between this case and that of Lynch by which to determine whether or not the defence of duress should be available. I consider that Smith and Hogan were perfectly right in the passage cited from that work by Lord Edmund-Davies to which I have already referred. I have not been able to find any writer~

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of authority that is able to give rational support for the view that the distinction between principals in the first degree and those in the second degree is relevant to determine whether or not duress should be available in a particular case of murder. Whatever may have divided Lord Wilberforce and Lord Edmund-Davies on the one hand, from Lord Simon of Glaisdale and Lord Kilbrandon on the other, it is apparent that all agree that this is not a distinction which should receive practical effect in the law.

I believe that the discussions of this matter have shown that at one extreme, namely that of the person who actually kills by a deliberate assault on a person who is then present, there is a fair body of support for the view that the defence of duress should either not be allowed or that the practical result will be even if it is allowed that it will never be established while there is also strong support for the view that at the other extreme minor participation which the law regards as sufficient to impute criminal guilt should be capable of being excused by the defence of duress. A similar consideration was no doubt present to the mind of Hume, the eminent writer on the Scottish criminal law, where in his work Commentaries on the Law of Scotland respecting Crimes (1829) 53 in relation to the defence in Scotland known as coercion, after a reference to the case of James Graham who claimed that he had been forced by Rob Roy and his gang to take part in an armed robbery, he says:

"But generally, and with relation to the ordinary condition of a well-regulated society, where everyman is under the shield of the law, and has the means of resorting to that protection, this is at least somewhat a difficult plea, and can hardly be serviceable in the case of a trial for any atrocious crime, unless it has the support of these qualifications: an immediate danger of death or great bodily harm; an inability to resist the violence; a backward and inferior part in the perpetration; and a disclosure of the fact, as well as restitution of the spoil, on the first safe and convenient occasion." (underlining added).

So far, I have not found any satisfactory formulation of a distinction which would be sufficiently precise to be given practical effect in law and at the same time differentiate between levels of culpability so as to produce a satisfactory demarcation between those accused of murder, who should be entitled to resort to the defence of duress and those who were not.

The House is therefore, in my opinion, faced with the unenviable decision of either departing altogether from the doctrine that duress is not available in murder or of departing from the decision of this House in Lynch. While a variety of minor attacks on the reasoning of the majority were mounted by counsel for the Crown in the present case, I do not find any of these sufficiently important to merit departing from Lynch on these grounds. I do, however, consider that having regard to the balance of authority on

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the question of duress as a defence to murder prior to Lynch, for this House now to allow the defence of duress generally in response to a charge of murder would be to effect an important and substantial change in the law. In my opinion too, it would involve a departure from the decision in the famous case of Reg. v. Dudley and Stephens

(1884) 14 QBD 273

. The justification for allowing a defence of duress to a charge of murder is that a defendant should be excused who killed as the only way of avoiding death himself or preventing the death of some close relation such as his own well-loved child. This essentially was the dilemma which Dudley and Stephens faced and in denying their defence the court refused to allow this consideration to be used in a defence to murder. If that refusal was right in the case of Dudley and Stephens it cannot be wrong in the present appeals. Although the result of recognising the defence advanced in that case would be that no crime was committed and in the case with which we are concerned that a murder was committed and a particular individual was not guilty of it (subject to the consideration of the second certified question) that does not distinguish the two cases from the point of view now being considered.

To change the law in the manner suggested by counsel for the appellants in the present case would, in my opinion, introduce uncertainty over a field of considerable importance.

So far I have referred to the defence of duress as if it were a precisely defined concept but it is apparent from the decisions that it is not so and I cannot do better in this connection than refer to what Lord Simon of Glaisdale said on this point in Lynch at p. 686:

"Before turning to examine these considerations, it is convenient to have a working definition of duress - even though it is actually an extremely vague and elusive juristic concept. I take it for present purposes to denote such [well grounded] fear, produced by threats, of death or grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as overbears the actor's wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it. I am quite uncertain whether the words which I have put in square brackets should be included in any such definition. It is arguable that the test should be purely subjective, and that it is contrary to principle to require the fear to be a reasonable one. Moreover, I have assumed, on the basis of Reg. v. Hudson [1971] 2 Q.B. 202 that threat of future injury may suffice, although Stephen's Digest of the Criminal Law art. 10 is to the contrary. Then the law leaves it also quite uncertain whether the fear induced by threats must be of death or grievous bodily harm, or whether threatened loss of liberty suffices: cases of duress in the law of contract suggest that duress may extend to fear of unjustified imprisonment; but the criminal law returns no clear answer. It also leaves entirely

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unanswered whether, to constitute such a general criminal defence, the threat must be of harm to the person required to perform the act, or extends to the immediate family of the actor (and how immediate?), or to any person. Such questions are not academic, in these days when hostages are so frequently seized."

To say that a defence in respect of which so many questions remain unsettled should be introduced in respect of the whole field of murder is not to promote certainty in the law. In this connection it is worth observing that when in the Law Commission Report No. 83 on "defences of general application," the Law Commission recommended that the defence of duress should be available in murder they suggested a definition of duress which is, I believe, considerably narrower than that generally thought to be available in the present law in respect of other offences. In particular they required that the defendant must believe that "the threat will be carried out immediately, or if not immediately, before he can have any real opportunity of seeking official protection" and they suggested that the fact that any official protection which might have been available in the circumstances would or might not have been effective to prevent the harm threatened should be immaterial in this context. It is of interest and importance to notice that this point figured long before in Hale's statement which I have quoted. It is to be noted that it was of this very part of Hale's statement that Lord Wilberforce said in Lynch at p. 682:

"Even if this argument was ever realistic, he would surely have recognised that reconsideration of it must be required in troubled times."

I notice that in the Law Commission Report No. 143, dated 28 march 1985, which contains a report to the Law Commission in respect of the codification of the criminal law by a team from the Society of Public Teachers of Law, doubt is expressed on the soundness of this recommendation in Report No. 83. This particular matter does not arise in the circumstances of the present case, but the great difficulty that has been found in obtaining a consensus of informed opinion upon it is just one illustration of the uncertain nature of what would be introduced into this most important area of the criminal law if the defence of duress were to be available.

Since the decision in Lynch the Law Commission have published in their Report No. 83, to which I have referred, the result of an extensive survey of the law relating to duress and have made recommendations upon it which have been laid before Parliament. In my opinion, the problems which have been evident in relation to the law of murder and the availability of particular defences is not susceptible of what Lord Reid described as a solution by a policy of make do and mend. While I appreciate fully the gradual development that has taken place in the law relating to the defence of duress I question whether the law has reached a sufficiently precise definition of that defence to make it

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right for us sitting in our judicial capacity to introduce it as a defence for an actual killer for the first time in the law of England. Parliament, in its legislative capacity, although recommended to do so by the report of the Law Commission, has not taken any steps to make the defence of duress available generally to a charge of murder even where it has the power to define with precision the circumstances in which such a defence would be available.

It has also been suggested for consideration whether, if the defence of duress is to be allowed in relation to murder by the actual killer, the defence should have the effect, if sustained, of reducing the crime to that of manslaughter by analogy with the defence of provocation. Provocation itself was introduced into the law by judicial decision in recognition of human frailty, although it is now the subject of a statutory provision and it was suggested that the same approach might be taken now with regard to duress. In this connection it is worthy of note that in the judgment in S. v. Goliath S.A.L.R. [1972] (3) 1, 465 in which Rumpff J.A. examined the question of whether compulsion could constitute the defence on a charge of murder from which Lord Wilberforce quoted as a statement of principle a substantial passage. Rumpff J.A. went on in a later passage to say at pp. 480-481:

"Whether an acquittal will follow on a charge of murder because of compulsion, will depend on the particular circumstances of each case and the whole factual complex will have to be carefully investigated and judged with the greatest circumspection. In the simple case where A kills B just to save his own life, the strength of the compulsion would be a decisive factor and the compulsion would have to be so strong that although not vis absoluta, it would still be comparable with it, in the sense that the reasonable man in the particular circumstances would not be able to withstand it.

For the purposes of replying to the reserved questions it is unnecessary to determine in what light the defence of compulsion must be seen i.e. whether it operates because of the lawfulness of the compelled act or whether it excludes the full fault."

And a little later he said, at p. 482:

"I am of the opinion that the second question which was stated:

['that is 'whether the special defence of compulsion can ever in law constitute a complete defence to a charge of murder so as to entitle an accused to an acquittal?']

must be answered by a qualified 'yes,' in the sense that a complete defence will depend on the circumstances of each case."

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From this I take it that Rumpff J.A. was of opinion that the defence might, depending on the circumstances, either lead to an acquittal or to a reduction of the charge from murder to a lower category of unlawful killing.

In my opinion, we would not be justified in the present state of the law in introducing for the first time into our law the concept of duress acting to reduce the charge to one of manslaughter even if there were grounds on which it might be right to do so. On that aspect of the matter the Law Commission took the view that where the defence of duress had been made out it would be unjust to stigmatise the person accused with a conviction and there is clearly much force in that view.

The argument for the appellants essentially is that Lynch having been decided as it was and there being no practical distinction available between Lynch and the present case this case should be decided in the same way. The opposite point of view is that since Lynch was concerned not with the actual killer but with a person who was made guilty of his act by the doctrine of accession the correct starting point for this matter is the case of the actual killer. In my opinion, this latter is the correct approach. The law has extended the liability to trial and punishment faced by the actual killer to those who are participants with him in the crime and it seems to me, therefore, that where a question as important as this is in issue the correct starting point is the case of the actual killer. It seems to me plain that the reason that it was for so long stated by writers of authority that the defence of duress was not available in a charge of murder was because of the supreme importance that the law afforded to the protection of human life and that it seemed repugnant that the law should recognise in any individual in any circumstances, however extreme, the right to choose that one innocent person should be killed rather than another. In my opinion, that is the question which we still must face. Is it right that the law should confer this right in any circumstances, however extreme? While I recognise fully the force of the reasoning which persuaded the majority of this House in Lynch to reach the decision to which they came in relation to a person not the actual killer. It does not address directly this question in relation to the actual killer. I am not persuaded that there is good reason to alter the answer which Hale gave to this question. No development of the law or progress in legal thinking which have taken place since his day have, to my mind, demonstrated a reason to change this fundamental answer. In the circumstances which I have narrated of a report to Parliament from the Law Commission concerned inter alia with this very question it would seem particularly inappropriate to make such a change now. For these reasons, in my opinion, the first certified question should be answered in the negative.

It follows that, in my opinion, the House should decline to follow the decision in Lynch. In my opinion, the reasoning which persuaded this House in Reg. v. Shivpuri [1986] 2 W.L.R. 988 that it was appropriate to reconsider its earlier

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decision in Anderton v. Ryan

[1985] AC 560

applies equally to the present case, although the decision in Lynch is of longer standing than was that of Anderton v. Ryan. Up to the present time, the courts have been declining to allow an actual killer to plead the defence of duress while allowing it to a person charged with murder who was not the actual killer as is illustrated in the circumstances of these appeals. The Lord Chief Justice in Reg. v. Graham (Paul) [1982] 1 W.L.R. 294, 297 illustrated how technical and puzzling in practice the distinction could be. In my opinion, it would not be right to allow this state of affairs to continue. I recognise that this decision leaves certain apparent anomalies in the law but I regard these as consequences of the fact that murder is a result related crime with a mandatory penalty. Consequently no distinction is made in penalty between the various levels of culpability. Differentiation in treatment once sentence has been pronounced depends upon action by the Crown advised by the executive Government although that may be affected by a recommendation which the court is empowered to make. Where a person has taken a minor part in a wounding with intent and is dealt with on that basis he may receive a very short sentence. If sufficiently soon after that conviction the victim dies on the same facts with the addition of the victim's death caused by the wounding, he may be sentenced to life imprisonment. This is simply one illustration of the fact that very different results may follow from a set of facts together with the death of a victim from what would follow the same facts if the victim lived.

I turn now to the second certified question. In the view that I take on question one the second does not properly arise. However, I am of opinion that the Court of Appeal reached the correct conclusion upon it as a matter of principle.

Giving the judgment of the Court of Appeal Lord Lane C.J., said [1986] 1 Q.B. 626, 641-642:

"The judge based himself on a decision of this Court in Reg. v. Richards [1974] Q.B. 776. The facts in that case were that Mrs. Richards paid two men to inflict injuries on her husband which she intended should "put him in hospital for a month." The two men wounded the husband but not seriously. They were acquitted of wounding with intent but convicted of unlawful wounding. Mrs. Richards herself was convicted of wounding with intent, the jury plainly, and not surprisingly, believing that she had the necessary intent, though the two men had not.

"She appealed against her conviction on the ground that she could not properly be convicted as accessory before the fact to a crime more serious than that committed by the principals in the first degree. The appeal was allowed and the conviction for unlawful wounding was substituted. The Court followed a passage from Hawkins' Pleas of the Crown, vol. 2. c. 29, para. 15:

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'I take it to be an uncontroverted rule that [the offence of the accessory can never rise higher than that of the principal]; it seeming incongruous and absurd that he who is punished only as a partaker of the guilt of another, should be adjudged guilty of a higher crime than the other.'

"James L.J. delivering the judgment in Reg. v. Richards, said, at p. 780:

'If there is only one offence committed, and that is the offence of unlawful wounding, then the person who has requested that offence to be committed, or advised that that offence be committed, cannot be guilty of a graver offence than that in fact which was committed.'

"The decision in Reg. v. Richards has been the subject of some criticism - see for example Smith and Hogan, Criminal Law, 5th ed. (1983), p. 140).

"Counsel before us posed the situation where A hands a gun to D informing him that it is loaded with blank ammunition only and telling him to go and scare X by discharging it. The ammunition is in fact live, as A knows, and X is killed. D is convicted only of manslaughter, as he might be on those facts. It would seem absurd that A should thereby escape conviction for murder.

"We take the view that Reg. v. Richards [1974] Q.B. 776 was incorrectly decided, but it seems to us that it cannot properly be distinguished from the instant case."

I consider that the reasoning of the Lord Chief Justice is entirely correct and I would affirm his view that where a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant.

I turn now to question three. On this question the learned Lord Chief

Justice said [1986] Q.B. 626, 642-643:

"Finally we turn to the second ground of appeal in the case of Howe and Bannister, namely, that the judge was wrong in directing the jury that there is an 'objective' element in the defence of duress. The judge directed the jury on this point as follows: The test is whether the threat was of such gravity that it might well have caused a reasonable man placed in the same situation as the defendant to act as the defendant did.' And a little later on the judge put it in this way: 'Would a sober person of reasonable firmness sharing the defendant's characteristics have responded to the threats by taking part in the killing

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"It seems to us that this direction was in accordance with the judgment of this court in Reg. v. Graham (Paul) [1982] 1 WLR 294 . Consequently this ground

of appeal likewise fails."

In Graham, Lord Lane C.J. giving the judgment of the Court of Appeal (Criminal Division) said at p. 300:

"As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in the terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self- control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situation. So too with self- defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one.

It follows that we accept Mr. Sherrard's submission that the direction in this case was too favourable to the appellant. The Crown having conceded that the issue of duress was open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows.(1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury?

(2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing? The fact that a defendant's will to resist has been eroded by the voluntary consumption of drink or drugs or both is not relevant to the test."

In my opinion, what the Lord Chief Justice said in the present case and in Graham was entirely correct. In my opinion, this question also falls to be answered "yes."

I, therefore, consider that these appeals should be dismissed, the first certified question answered in the negative and the second and third in the affirmative.

R v Howe [1986] UKHL 4

Judgment: 19.2.87

HOUSE OF LORDS

BURKE (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

HOWE (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

BANNISTER (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

(CONJOINED APPEALS)

REGINA

CLARKSON (APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

THE LORD HAILSHAM OF ST. MARYLEBONE

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In answering the second question, the Court of Appeal

invited us to reconsider the decision of the Court of Appeal in

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Justice continued at pp. 635-636:

"In brief the two appellants asserted that they had

only acted as they did through fear of Murray, believing

that they would be treated in the same way as Elgar had

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". . . ought rather to die himself than escape by the murder of an innocent."

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LORD BRIDGE OF HARWICH

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LORD BRANDON OF OAKBROOK

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LORD GRIFFITHS

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LORD MACKAY OF CLASHFERN

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Question 1

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killing by a principal in the first degree to be dealt with as they arise."

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Justice said [1986] Q.B. 626, 642-643:

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of appeal likewise fails."

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