DPP for Northern Ireland v Lynch
| Jurisdiction | UK Non-devolved |
| Judge | Lord Morris of Borth-y-Gest,Lord Wilberforce,Lord Simon of Glaisdale,Lord Kilbrandon,Lord Edmund-Davies |
| Judgment Date | 12 March 1975 |
| Judgment citation (vLex) | [1975] UKHL J0312-2 |
| Date | 12 March 1975 |
| Court | House of Lords |
[1975] UKHL J0312-2
Lord Morris of Borth-y-Gest
Lord Wilberforce
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Edmund-Davies
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions for Northern Ireland against Lynch (on Appeal from the Court of Criminal Appeal in Northern Ireland), That the Committee had heard Counsel, as well on Monday the 18th, as on Tuesday the 19th, Wednesday the 20th, Thursday the 21st, Monday the 25th, Tuesday the 26th and Wednesday the 27th, days of November last, upon the Petition and Appeal of Joseph Lynch, now detained at Her Majesty's Prison Maze, Lisburn, County Antrim, Northern Ireland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal in Northern Ireland of the 27th of June 1974, 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 for Northern Ireland, 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 Criminal Appeal in Northern Ireland of the 27th day of June 1974, complained of in the said Appeal, be, and the same is hereby, Discharged, and that the conviction imposed by the Honourable Mr. Justice Gibson at the Belfast City Commission on the 20th day of June 1972 be, and the same is hereby, Quashed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Criminal Appeal in Northern Ireland with a Direction That a new Trial be had pursuant to section 13 of the Criminal Appeal (Northern Ireland) Act 1968, and with a further Direction That the said Court do proceed in accordance with the provisions of section 14 of the said Act: And it is also further Ordered, That the Appellant do remain in custody pending a decision by that Court.
My Lords,
The Appellant was charged, together with two others named Bates and Whelan, with having, on the 28th January 1972, murdered one Raymond Norman Carroll who was a police constable. The killing took place in Belfast. The trial, which was before a learned judge and a jury, began on the 12th June 1972 and concluded on the 20th June 1972. On that latter date the jury returned unanimous verdicts of Guilty against the Appellant and against Bates. They were sentenced to life imprisonment. Whelan, who was said by the Prosecution to have been an accessory before the fact, was acquitted at the close of the case for the Crown.
The case against the Appellant was that he was a principal in the second degree. He had not done any of the actual shooting which killed the police constable. The case against him was that he had aided and abetted the killing. The learned judge in his summing-up gave careful directions to the jury as to what has to be proved before an accused person can be found guilty of murder by having aided and abetted. Save as to one matter to which I will later refer it was not submitted in this House that the directions given were erroneous and we were not invited to consider them. The main contention of the Appellant and one of the main lines of his defence at the trial was that all that he had done had been done under duress and that he was entitled to be acquitted.
The course followed at the trial was that the evidence was given, and was not excluded, which could form the factual basis upon which the plea of acting under duress could be presented. The Appellant himself gave evidence. When all the evidence in the case was concluded submissions in law were made to the learned judge, in the absence of the jury, in regard to the applicability of duress as a defence in the case of one charged with murder as a principal in the second degree. The learned judge ruled for reasons which he gave that in such a case the defence of duress was not available. He therefore withdrew from the jury the question whether the Appellant had been compelled by duress to participate in the events which culminated in the shooting of Police Constable Carroll. It followed that if duress was not available as a defence there was no need for the learned judge to consider or to discuss or to direct the jury as to certain aspects of the matter that might upon the footing of its availability have become relevant. Where duress is in issue many questions may arise such as whether threats are serious and compelling or whether (as on the facts of the present case may specially call for consideration) a person the subject of duress could reasonably have extricated himself or could have sought protection or had what has been called a "safe avenue of escape". Other questions may arise such as whether a person is only under duress as a result of being in voluntary association with those whom he knew would require some course of action. In the present case, as duress was not left to the jury, we naturally do not know what they thought of it all.
It was not in contest that if in a criminal case a defence of duress is open, and if as an issue it is raised, the burden of proof which rests upon the prosecution then includes the burden of proving that the accused did not act under duress.
The Appellant appealed to the Court of Criminal Appeal. He appealed on four grounds. Of the two which were pursued the first was that the learned judge was wrong in law and misdirected the jury by telling them that duress cannot be a defence to murder. The second, which is not before us, was that there had been misdirection on a question of corroboration. The appeal was heard by the Lord Chief Justice, Curran L.J. and O'Donnell J. On the 27th June 1974 the appeal was dismissed. In a reasoned judgment containing a valuable review of decided cases, the Lord Chief Justice set out the conclusions (shared by all three members of the court) which led them to hold that duress cannot be acepted as a defence to murder. In giving judgment the court recorded that they had given consideration to one aspect of the case that had not been argued. It raised a point concerning the intention which must be proved before there can be a conviction of aiding and abetting. On this one point O'Donnell J. delivered a dissenting opinion.
The court certified that two points of law of general public importance were involved in their decision. The second related to the aspect of the case above mentioned. The court gave leave to appeal. The two points are as follows: —
"(1) On a charge of murder is the defence of duress open to a person who is accused as a principal in the second degree (aider and abettor)?
(2) Where a person charged with murder as an aider and abettor is shown to have intentionally done an act which assists in the commission of the murder with knowledge that the probable result of his act, combined with the acts of those whom his act is assisting, will be the death or serious bodily injury of another, is his guilt thereby established without the necessity of proving his willingness to participate in the crime?".
The facts as described or asserted by the Appellant can be briefly summarised. Many of them had been set out in a signed statement which he had made to the Police. He said that while at his house he had received a message that one Sean Meehan required his presence. It was in the forefront of his case that Sean Meehan was and was known to be both a member of the I.R.A. and a ruthless gunman. The Appellant had not previously known Meehan personally but had known of him. He said that what Meehan asked to be done had to be done. "You have no other option". I firmly believe that I would have been shot for defying him". So he went with the messenger to an address in Belfast and there saw Meehan and two other men. Meehan, he said, had a rifle in his hand. After it was learned that the Appellant could drive a car he was told to go with another man named Mailey (who had a small automatic gun) and seize a car. They went away. Mailey held up a car and ordered its driver to get out. The Appellant was told to drive the car to the address where Meehan had remained. The Appellant did so. He parked the car and was told that he would not be doing any more driving. So he returned to his own house. Some half-hour later the messenger returned and told the Appellant that Meehan wanted him. He went to the same house as before. Meehan, Bates, Mailey and another man were there. Meehan who had a rifle told the Appellant that he was to drive the car which he then did after Mailey (who had a gun in his pocket) had got in beside him and after Bates and Meehan had got into the back. Meehan, Bates and Mailey had combat jackets and balaclava helmets. The Appellant was told to go to a particular road. He asked Meehan what he was going to do and was told: "Bates knows a Policeman". Following directions given to him he drove past a garage (at which point Bates said: "That's him") and then stopped near to the garage. Meehan told him to stay there. The other three pulled up their woollen helmets and left the car and ran across the road. Then there were a number of shots fired in quick succession. The three men came running back to the car and got into it. The Appellant was told to drive on— which he did. They returned to their starting point.
Witnesses gave evidence that the three men who got out of the car...
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