Developments in Duress
| Author | Ian Dennis |
| Published date | 01 November 1987 |
| Date | 01 November 1987 |
| DOI | http://doi.org/10.1177/002201838705100408 |
| Subject Matter | Article |
Developments in Duress
Corroboration and child evidence generally; conclusion
The
rules on the competence of children to give evidence are tied up
with the rules relating to corroboration, and it is difficult to consider
one without the other. The present rules on corroboration, like
those on competency, seem to have a great deal the matter with
them, as has been said at length elsewhere.V
If
it was not so likely to
be a recipe for permanent inaction, it would be tempting to say that
what is really needed is a complete overhaul of the law relating to
child witnesses.
31 Glanville Williams (1987) 137
N.L.l.
131-133; Spencer [1987] Crim.L.R.
239-251.
DEVELOPMENTS IN DURESS
Ian Dennis *
The House of Lords is acquiring a taste for overruling its previous
decisions in criminal cases. The latest victim of the trend set by R. v
Moloney' and R. vShivpuri 2is the duress case of Lynch vD.P.P.
for
Northern Ireland. 3
It
willbe recalled that in that case the House,
by a majority of three to two, held that duress could be a defence to
aperson charged with murder as a secondary party (aider and
abettor). Judicial dislike of the decision was signalled shortly
afterwards when the majority
ofthe
Judicial Committee
ofthe
Privy
Council in
Abbott
vR.4refused to extend it to the case of the actual
killer (principal in the first degree).
It
was always doubtful whether
•Reader in English Law, University College, London.
1[1985]A.C. 905, effectively overruling Hyam vD.P.P. [1975] A.C. 55.
2[1987]A.C. 1, explicitly overruling Anderton vRyan [1985]A.C. 560.Reference
might also be made to R. vCooke [1986] A.C. 909, cutting down the ambit of the
much criticised case of R. vAyres [1984] A.C. 447, and R. vMorris [1984]A.C. 320
which effectively turned the obscure case of Lawrence vMetropolitan Police
Commissioner [1972]A.C. 626 into a decision on its own facts.
3[1975]A.C. 653.
4[1977]A.C. 755.
463
Journal
of
Criminal Law
the distinction thus created could be rationally supported.f Ten
years on in R. vHowe 6aunanimous House seized the opportunity
to do away with it. The decision in
Abbott
vR. was followed; duress
was further held to be no defence to any participant in murder and
the Practice Statement" was invoked to overrule the decision in
Lynch. The law now is that duress is a general defence to all crimes
with the definite exception of murder and the probable exception of
attempted murder (see below). The position with regard to duress
and treason remains unclear.8
The
purpose of this article is to evaluate this development,
particularly in the light of the proposed codification of the criminal
law. Comment will also be made on a number of other aspects of
duress which have been the subject of recent case law. There is no
doubt that the result of this burst of judicial activity has been the
clarification of the defence, but whether the coherence of the law
has been improved is debatable.
Duress and murder
The
Court of Appeal in Howe certified three questions of general
public importance. The first was:
"Is
duress available as a defence to a person charged with murder
as a principal in the first degree (the actual killer)?"
It
has to be said immediately that the facts of the appeals involved
were not such as to encourage an affirmative answer. The case is a
very clear example of a "result-pulled" decision. In the first of the
two conjoined appeals Howe and Bannister had been convicted of
two murders and conspiracy to murder a third person. Having fallen
under the influence of one Murray, a man described as "dishonest,
powerful, violent and sadistic",9they had taken part at his direction
in an attack on the first victim whom they had savagely beaten and
tortured before he was strangled by a fourth member of the group. 10
5For criticism see Dennis, "Duress, Murder and Criminal Responsibility" (1980)
96
L.Q.R.
208; Glazebrook, "Committing Murder Under
Duress-Again"
[1976]
C.L.I.206.
6[1987]1 All
E.R.
771.
7[1966]1 W.L.R. 1234.
s See Smith and Hogan, Criminal Law (5th ed. 1983) 212-213.
9[1987]1 All
E.R.
at p. 791.
10 This person (Bailey) and Murray changed their pleas to guilty during the trial.
464
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