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Duress and the Criminal Law: Another About Turn by the House of Lords

  • H. P. Milgate


In the field of criminal law we should be used to the House of Lords changing its mind. In the course of the past three years the House has fundamentally altered its view on the meaning of intention, on the relationship between statutory and common law conspiracy and on the law of impossible attempts. Now we have another about turn. In R. v. Howe and Bannister the House of Lords has unanimously decided that duress can never be a defence to murder. Yet elsewhere in the criminal law (with the exception of some forms of treason) duress operates as a complete defence, leading to acquittal if raised successfully. In making murder an exception to this general rule the House, using its power under the Practice Statement of 1966, has departed from its previous decision in D.P.P. for Northern Ireland v. Lynch which allowed the defence of duress to be raised by principals in the second degree to murder. The Lynch decision, which had stood as part of the common law for some twelve years, is now consigned to the legal scrapheap.



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1 See Moloney [1985] A.C. 905 and Hancock [1986] A.C. 455.

2 See Ayres [1984] A.C. 447 and Cooke [1986] 1 A.C. 909; and see now the Criminal Justice Act 1987, s.12.

3 See Shivpuri [1987] A.C. 1.

4 [1987] A.C. 417. Strong criticism of the decision has already been made. See the commentary by ProfessorSmith, J. C. in [1987] Crim.L.R. 480 and DrGearty's, comments in [1987] C.L.J. 203.

5 The defence of duress is of ancient pedigree and was recognised as long ago as the fourteenth century. Its basis in modern law is best expressed by J., Murnaghan in A-G v. Whelan [1934] I.R. 518, 526 where he said: “… threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal.” Notably, however, Murnaghan J. went on to say that he was against allowing duress as a defence to murder. On the defence of duress generally see Smith, and Hogan, , Criminal Law, 5th ed. (1983), pp. 209217 and Williams, , Textbook of Criminal Law, 2nd ed. (1983), pp. 624635.

6 Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234.

7 [1976] A.C. 653.

8 Two other questions were also considered by the House: (1) 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? (2) 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?

9 Clarkson, who had requested Burke to carry out the killing, but had taken no part in the actual shooting, was guilty of murder as a secondary party.

10 The House relied on its previous decision in Lynch, supra, note 7, and the Privy Council decision in Abbott v. The Queen [1977] A.C. 755, to support this proposition.

11 Lord Hailsham alone could see merit in a distinction between “a man who actually participates in the irrevocable act of murder to save his own skin … and a man who simply participates before or after the event in the necessary preparation for it or the escape of the actual offender” ([1987] A.C. 417, 429). But how would Lord Hailsham distinguish between those killers who could rely on duress and those who could not? He clearly had little time for a distinction based on the “arcane terminology of accessory, principal in the second degree and aiding and abetting.” Would he, for example, have allowed Howe and Bannister to raise the defence in respect of Elgar's killing? In the event, it was unnecessary to answer these questions because ultimately Lord Hailsham concluded that Lynch should be overruled, notwithstanding that this would deny the defence of duress to those who played a “comparatively modest part” in murder. He did so on the basis that Lynch could not be justified on authority, a somewhat surprising statement from a member of the majority in Abbott which “loyally accepted” the decision in Lynch.

12 [1987] A.C.417, 452. The illogicalities of such a distinction are clearly illustrated by the ruling at first instance in the Howe and Bannister case, where duress was allowed as a defence to Elgar's murder, but not to that of Pollitt. In such a case the technical distinction between primary and secondary participation bears no relation to moral culpability.

13 Supra, note 7.

15 Supra, note 10.

16 See Graham [1982] 1 W.L.R. 294 where the Crown conceded the point. The argument that the common law supported the extension of Lynch to the principal in the first degree is put by DrGearty, [1987] C.L.J. 203, 204.

17 [1987] A.C. 417, 436.

18 [1975] A.C. 653, 681.

19 Ibid., at p. 715. See Smith and Hogan, Criminal Law, 3rd ed., p. 166.

20 Lane, Lord, who gave the judgment in the Court of Appeal in Howe [1986] Q.B. 626, seems to have been mistaken when he asserts at p. 639 that the majority in Lynch reached their decision “on the basis that the principal in the second degree … can logically be distinguished from the principal in the first degree.” As the passages quoted in the text show, Lords Wilberforce and Edmund-Davies took the opposite view. Only the third member of the majority in Lynch, Lord Morris, accepted such a distinction was logical and even he admitted that he did so solely on the basis of “direct and straightforward” examples. See Lynch, [1975] A.C. 653, 672. On the Court of Appeal decision generally see Milgate, H. P. [1986] C.L.J. 183.

21 (1884) 14 Q.B.D. 273.

22 [1975] A.C. 653, 692. Lord Simon's preferred solution was to allow duress to reduce murder to manslaughter, but he felt only Parliament should make such a change in the law. (See the report at p. 697)

23 Note that although Lord Simon quoted (at p. 692) a passage from Williams, , Criminal Law: The General Part, 2nd ed. (1961), p. 760, to support his view that duress is “merely a particular application of the doctrine of ‘necessity,’” Professor Williams has now changed his mind and considers that “the two doctrines rest on different foundations.” See Williams, Textbook of Criminal Law, p. 634, n. 2. Note too that Lord Simon's fear that to allow duress as a defence to murder would create a “charter for terrorists” (p. 688) has recently been mitigated by two Court of Appeal decisions which exclude the defence if the defendant has voluntarily joined a violent criminal gang. See Sharp [1987] 1 Q.B. 583 and commentary thereon by DrGearty, at [1987] C.L.J. 379 and Shepherd [1987] Crim.L.R. 686.

24 A third option, to maintain the status quo and leave reform of the law to Parliament, was not considered.

25 Supra, note 3.

26 [1985] A.C. 560.

27 Bridge, Lord in Shivpuri [1987] A.C. 1, 23, said “… I cannot see how, in the very nature of the case, anyone could have acted in reliance on the law as propounded in Anderton v. Ryan in the belief that he was acting innocently and now find that, after all, he is to be held to have committed a criminal offence.” The same cannot be said of reliance on the Lynch decision, yet there is no mention of the point in Lord Bridge's judgment in Howe.

28 See Williams, , “The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes? [1986] C.L.J. 33.

29 [1987] A.C. 417, 432.

30 Williams, Textbook of Criminal Law, p. 149, n. 2, cites the statutory offence of failing to rescue those in peril on the sea: Maritime Conventions Act 1911, s.6; Merchant Shipping (Safety Convention) Act 1949, s.22. At common law the House of Lords' decision in Dudley and Stephens, supra, note 21, which denies the defence of necessity to those charged with murder, also demands heroic standards.

31 Even if a constable requests help in this situation, it is not absolutely clear that the citizen is obliged to act. See Smith and Hogan, Criminal Law, p. 715.

32 See Davies [1975] Q.B. 691.

33 Contrary to the Offences Against the Person Act 1861, s. 18.

34 [1987] A.C. 417, 432. Lord Brandon (at p. 438) and Lord Mackay (at p. 457) also accepted that such an anomaly was an inevitable result of their decision.

35 Supra, note 21. The decision in Dudley and Stephens seems to be the main authority for Hailsham's, Lord statement in Howe [1987] A.C. 417, 429, that Lynch could not be “justified on authority”.

36 [1975] A.C. 653, 692. On this aspect of Lord Simon's speech sec note 23, supra.

37 Necessity has been denied as a defence to the theft of food or clothing since the time of Hale. It is unlikely to be allowed as a defence to the theft of other types of property. Considerable doubt also exists whether necessity is available on a charge of reckless driving contrary to Road Traffic Act 1972, s.2. Sec Buckoke v. G.L.C. [1971] Ch. 655; Willer [1987] R.T.R. 22 and Denton [1987] R.T.R. 129. See further Smith and Hogan, Criminal Law, pp. 202–204 and Glazcbrook [1972A] C.L.J. 87.

38 [1987] 1 W.L.R. 294, 300. Note however that in the Court of Appeal in Howe Lord Lane preferred the analogy with necessity and expressed the view that duress should be denied as a defence to anyone charged with murder. Failing that, “by analogy with provocation” duress should operate so as to reduce murder to manslaughter. See [1986] Q.B. 626, 641.

39 [1987] A.C. 417, 456. Lord Mackay's rejection of this idea may well have been influenced by the fact that in Lynch, supra, note 7, several of their Lordships thought that legislation would be necessary before duress could operate so as to reduce murder to manslaughter. (See e.g. Lord Wilberforce [1975] A.C. 653, 681.) But note that the defence of provocation reduces murder to manslaughter as a matter of common law—section 3 of the Homicide Act 1957 does not deal with the point. Note too that immediately after rejecting the idea that duress should reduce the charge to manslaughter, Lord Mackay goes on to point out that 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…” This is a surprising reference, as the Law Commission concluded that duress should be available as a complete defence to all crimes including murder (see Law Com. No. 83). The reference serves only to undermine the decision to overrule Lynch.

40 [1987] A.C. 417, 435. Interestingly, Lord Hailsham also rejected an analogy between duress and diminished responsibility, ibid.

41 [1987] A.C. 417, 437 (Lord Bridge) and p. 443 (Lord Griffiths). Professor Smith is particularly critical of this aspect of the decision. See [1987] Crim.L.R. 480, 482.

42 [1987] A.C. 417, 445.

43 Law Com. No. 102, paragraph 2.97.

44 Murder (Abolition of Death Penalty) Act 1965, s.l(l).

45 [1987] A.C. 417, 445–446.

46 [1975] A.C. 675, 685.

47 Ibid., at pp. 687–688.

48 [1987] A.C. 417, at pp. 433–434 (Lord Hailsham) and at pp. 443–444 (Lord Griffiths).

49 Ibid., at p. 434. Lord Hailsham seems to forget about the robustness of juries when discussing the case of Hindawi (unreported) a few lines earlier.

50 Note also that the House of Lords in Lynch, having allowed the appeal, ordered a retrial. At this retrial Lynch's defence of duress was rejected by the jury.

51 Graham [1982] 1 W.L.R. 294, 300, quoted with approval by Mackay, Lord in Howe [1987] A.C. 417, 458. This objective test has recently received further approval from the House of Lords in More [1987] 1 W.L.R. 1578, 1583.

52 See Sharp and Shepherd referred to in note 23, supra.

53 [1987] A.C. 417, 455. See also Lord Bridge at pp. 437–438.

54 See O'Grady [1987] 1 Q.B. 995 and Beckford v. The Queen [1987] 3 W.L.R. 611.

55 See Sharp and Shepherd referred to in note 23, supra.

56 Supra, note 1.

57 The Northern Irish case of Fagan (1974, unreported) was not referred to. In that case MacDcrmott J. held that duress would be available on a charge of aiding and abetting attempted murder. The same view was expressed by Lord Widgery in the Court of Appeal in Lynch, and when Lynch reached the House of Lords Fagan was referred to, apparently with approval, by Lord Edmund-Davies ([1975] A.C. 653, 715) and Lord Wilberforce (at p. 682). Cf. Bray, C.J. in Brown and Morley [1968] S.A.S.R. 467.

58 [1987] A.C. 417, 445. See also Lord Hailsham (at p. 432). This view, however, creates its own anomalies. If A, under threat of death, shoots B and seriously injures him, he may find himself facing charges of attempted murder and causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. According to this view, duress would only be a defence to the section 18 charge.

59 It would be very unfortunate if duress were allowed on a conspiracy to murder charge but not on an attempted murder charge. Suppose X threatens to kill Y unless Y plants a bomb in a crowded supermarket. Y, fearing for his life, agrees and plants the bomb. In the event, the bomb is discovered and defused. There seems little logic in allowing Y to plead duress if the charge is conspiracy to murder, but not if the charge is attempted murder.

60 [1975] A.C. 653, 700.

* I am grateful to Mr. John Spencer for his helpful comments on a draft of this article.

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Duress and the Criminal Law: Another About Turn by the House of Lords

  • H. P. Milgate


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