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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Howe [1986] UKHL 4 (19 February 1986)
URL: http://www.bailii.org/uk/cases/UKHL/1986/4.html
Cite as: [1987] 2 WLR 568, [1987] 1 All ER 771, [1986] UKHL 4, [1987] AC 417

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JISCBAILII_CASE_CRIME

    Parliamentary Archives,
    HL/PO/JU/18/247

    Regina

    v.

    Clarkson (Appellant)
    (On Appeal from the Court of Appeal (Criminal Division))

    JUDGMENT

    Die Jovis 19° Februarii 1987

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Clarkson, That the

    Committee had heard Counsel on Monday the 17th, Tuesday the
    18th, Wednesday the 19th and Thursday the 20th days of
    November 1986, upon the Petition and Appeal of William George
    Clarkson, currently detained at Her Majesty's Prison,
    Leicester Road, Market Harborough, Leicestershire, praying
    that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of Appeal
    (Criminal Division) of 27th January 1986, might be reviewed
    before Her Majesty the Queen in Her Court of Parliament and
    that the said Order might be reversed, varied or altered or
    that the Petitioner might have such other relief in the
    premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; and Counsel having been heard on
    behalf of the Director of Public Prosecutions (on behalf of
    Her Majesty), the respondent to the said appeal; and due
    consideration had this day of what was offered on either side
    in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    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

    v.

    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).

    - 1 -

    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)?

    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?"

    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

    - 2 -

    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

    - 3 -

    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

    - 4 -

    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

    - 5 -

    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

    - 6 -

    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

    - 7 -

    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

    - 8 -

    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.

    - 9 -

    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."

    - 10 -

    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.

    - 11 -

    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

    - 12 -

    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).

    1. 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.

    2. 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) -


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

    2. 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.

    1. 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.

    2. 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.

    - 22 -

    (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

    - 24 -

    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

    - 25 -

    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

    - 26 -

    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

    - 27 -

    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:


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

    2. 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?

    3. 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 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

    - 28 -

    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

    - 29 -

    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

    - 31 -

    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~

    - 32 -

    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

    - 33 -

    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

    - 34 -

    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

    - 35 -

    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."

    - 36 -

    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

    - 37 -

    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:

    - 38 -

    '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

    - 39 -

    "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.

    - 40 -


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