Comment
| DOI | 10.1177/002201838605000306 |
| Published date | 01 August 1986 |
| Date | 01 August 1986 |
| Subject Matter | Article |
COMMENT
MURDER
UNDER
DURESS-AWAITING
THE
FINAL
WORD
In two consolidated appeals the Court of Appeal has addressed
directly, for the first time in an English appellate court, the
question whether duress should constitute a defence to a charge of
murder. This is an issue which had been left uncertain by the
authorities, since the House of Lords decided, on appeal from
Northern Ireland, in Lynch,Ithat duress was capable of
constituting adefence to a charge of aiding and abetting murder,
only for the Privy Council to decide in
Abbot?
that it could not
constitute adefence to a charge of murder as perpetrator. Although
there was some indication given in Graham' that the defence would
be available on a charge of murder, and two official reports" have
recommended that the defence be so available, and in spite of
compelling arguments against the decision in
Abbott.:
the Court of
Appeal has now taken the viewthat duress is no defence to a charge
of murder. This decision is R. v. Howe &Bannister: R. v. Burke &
Clarkson." in which the House of Lords will also have to consider
the basic test for the availability of the defence of duress 7and
questions relating to the liability of accessories.
The Facts
The facts of the two cases require some explanation. Howe and
Bannister had taken part in the sadistic killing of two men, Elgar
and Pollitt. Theyclaimed at all material times to be acting as a result
I
[19751
A.C. 653.
2[1977) x.c. 755.
J[198211 All
E.R.
801.
4Law Com. 83, Criminal Law: Defences
of
General Application (1977) para.
2.39-2.46, Law Com. 143, Criminal Law: Codification
of
the Criminal Law (1985)
para. 13.15.
SDennis, "Duress, Murder and Criminal Responsibility" (1980) 96 L.O.R. 208.
b(1986)1 All
E.R.
833; 50 J.C.L. 228.
7Considered by the Court of Appeal in R. v. Graham (1982)1 All E.R. 801, as to
which see "Duress and the Reasonable Person" (1983) 34 N.LL.O. 125.
257
Journal
of
Criminal Law
of duress from a man called Murray. They had kicked
and
tortured
Elgar
but
he was finally strangled by an accomplice, Bailey.
Their
position as to
the
killing of Elgar was as principals in the second
degree
and
(following Lynch) the judge directed the jury that
duress would constitute adefence. Howe and Bannister actually
strangled (and so were principals in the first degree to
the
murder
of) Pollitt with Bannister's shoelace.
The
trial judge (following
Abbott)
directed the jury that duress was not available on this
charge. Athird such
murder
was avoided because the victim got
away,
but
on a charge of conspiracy to commit
murder,
the
defence
of duress was
put
to
the
jury. Appeals were taken on against the
direction based upon
Abbott
and
on
the
grounds that the judge had
erred
in following
the
"objective"
test in duress."
Burke
shot a63-year-old man at point blank range with a sawn-off
shotgun. He claimed, in going to
the
scene of the crime, to have
been
acting
under
duress from a man called Clarkson (who was not
present at the killing). He also claimed that the gun had actually
gone off accidentally. He
appealed
upon
the
ground
that
the judge
erred
in law in withdrawing
the
defence of duress from
the
jury on
the
charge of
murder,
and
also
that
he
erred
in law (and influenced
the
jury towards convicting him of manslaughter) by telling
the
jury
that
if Burke was acquitted, Clarkson could not be convicted
either
of procuring manslaughter or procuring
murder,
and
that if
he was only convicted of manslaughter, Clarkson could himself only
be convicted of manslaughter."
As to
the
correctness of the direction in Howe &Bannister on the
basic standard for the availability of the defence of duress,
Lord
Lane
CJ,
giving
the
judgment
of the
Court
of
Appeal,
simply
noted
that
the
trial judge had followed Graham, by which the
Court
of
Appeal
was also
bound.
Consequently, although leave to appeal
has
been
granted, the instant case does nothing to advance the
argument beyond Graham. This note will deal with
the
treatment
of
the issues of duress
and
murder
and
the complicity question.
KFollowing Richards [1974]
O.B.
776.
258
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