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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: [1986] UKHL 4, [1987] AC 417, [1987] 2 WLR 568, [1987] 1 All ER 771 |
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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)?
Can one who incites or procures
by duress another to
kill or to be a party to a
killing be convicted of
murder if that other is acquitted by
reason of duress?
Does the defence of
duress fail if the prosecution
prove that a person of
reasonable firmness sharing the
characteristics of the defendant
would not have given
way to the threats as did the defendant?"
The first of
these questions involves a reconsideration of the
much discussed
decisions in Director of Public Prosecutions for
Northern
Ireland v. Lynch [1975] A.C. 653 and Abbott v. The
Queen
[1977] A.C. 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] Q.B. 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] A.C. 653 and
Abbott v. The
Queen [1977] A.C. 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] A.C. 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 Q.B.D. 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]
A.C. 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 Q.B.D. 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] A.C. 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] A.C. 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] A.C. 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] A.C. 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]
A.C. 653 should be regarded as unsatisfactory and the
law left as
it was before Lynch came up for decision. The
decision in
Abbott [1977] A.C. 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] A.C. 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] A.C. 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] A.C. 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] A.C. 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 Q.B. 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] A.C. 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] A.C. 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] A.C. 653, that the law should not demand
more
than human frailty can sustain. They preferred the latter
argument
and accordingly recommended that a defence of duress
- 21 -
should be
available to all crimes including murder. But in the
draft Bill
they annexed to their report they prescribed the defence
in far
narrower terms than it had hitherto been defined by the
judges and
they introduced conditions which clearly go beyond the
bounds of
judicial creativity and would require legislation. It is
worth
reminding oneself of the first two clauses:
"1. - (1)
The following provisions of this section provide a
defence
(referred to below in this Act as 'the defence of
duress') in
place of the defence of duress at common law
(which is
consequently abolished except in relation to
offences committed
before the passing of this Act).
Subject to section 2 and
subsection (5) below, a person
shall not be guilty of
an offence by virtue of any action
taken by him under
duress.
A person shall be
regarded for the purposes of this
section as having
taken any action under duress if he was
induced to
take it by any threat of harm to himself
or
another and at the time when he took it
he believed
(whether or not on reasonable grounds) -
that the harm threatened
was death or serious
personal injury (physical or mental);
that the threat would be
carried out immediately
if he did not take the action
in question or, if not
immediately, before he
could have any real
opportunity of seeking official
protection; and
(c)
that there was no other way of avoiding
or
preventing the harm threatened;
provided,
however, that in all the circumstances of the case
(including what
he believed with respect to the matters
mentioned in paragraphs
(a) to (c) above and any of his
personal
circumstances which are relevant) he could not
reasonably have
been expected to resist the threat.
(4) The fact
that any official protection which might have
been available in
the circumstances would or might not have
been effective to
prevent the harm threatened is immaterial
for the purposes of
subsection (3)(b) above.
The defence of duress does not
apply in any case where
on the occasion in question the
defendant was voluntarily
and without reasonable
cause in a situation in which he
knew he would
or might be called upon to commit the
offence
with which he is charged or any offence of the
same
or a similar character under threat of death or serious
personal
injury (whether to himself or to anyone else) if in
the
event he should refuse to do so.
In this section 'official
protection' means the protection
of the police, of the
authorities governing any prison or
other custodial
institution, or of any other similar authority
concerned in the
maintenance of law and order.
- 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] A.C. 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] A.C. 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 c