DURESS AND MURDER
| Author | R. S. O'Regan |
| Date | 01 November 1972 |
| Published date | 01 November 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01342.x |
DURESS AND MURDEK.
DURESS,
.it
has often been said, is no defence to murder. The
proposition is as old as Hale1 and was accepted by both Black-
stone and
step her^.^
The Royal Commissioners gave effect to
it
in
their Draft Code of
1879
and thus
it
finds expression also in many
codifications of the common law
oversea^.^
There is however very
little judicial authority which explicitly supports Hale's
"
stern
rule
"6
or
confirms its application to all forms of complicity in
murder.
The only English precedent which might qualify as a leading
case is
Tyler
and
Price,l
decided in
1838.
The two accused were
members of an armed gang which under the leadership of a lunatic
named John Thom had gathered to resist the authorities. Thom
shot a constable's assistant who had come to arrest him and the
accused helped to throw the wounded man into a ditch where he
died. Upon their trial for murder they sought to excuse their
participation in the killing on the ground of duress.
It
was, they
said, fear of personal violence which had caused them to remain
with the gang.a Lord Denman
C.J.,
in charging the jury, summarily
despatched this argument. He said
'
:
"
.
.
.
the law is that no man, from a fear of consequences
to
himself has a right to make himself a party to committing
mischief on mankind.
. . .
It
cannot be too often repeated,
that the apprehension of personal danger does not furnish any
excuse for assisting in doing any act which is illegal."
Of course the generality of Lord Denman's remarks must be limited
to the facts of the case before him. Otherwise duress would never
be a defence to any criminal charge and clearly
it
is a defence to
many.1° Read down the learned judge's remarks may be taken as
meaning that one who aids and abets the commission of murder
1
1
P.C.
50.
2
4
B1.Comm.
27.
3
History
of
the
Criminal Law
of
England,
1883,
Vol.
2,
p.
107.
Stephen's
view was that duress should not be
a
defence
to
any criminal charge but
only
a
matter of mitigation.
Ibid.,
p.
108.
4
s.
23.
5
See,
e.g.
the Criminal Codes of Canada
(8.
17),
New Zealand
(6.
21)
and
Queensland
(8.
31
(4)).
For a discussion
of
the influence
of
the
Draft
Code
on
these Codes fiee Glanville Williams,
Crinzinal Law,
The
General
Part
(2nd ed.,
1961),
pp.
583-584.
6
Report of the Royal Commissioners
on
t,he Draft Code, note
A,
p.
43.
5
(1838)
8
Car.
&
P.
616.
8
Ibid.
at
p.
620.
9
Ibid.
at Pp.
620-621.
10
See, for example, the wide range of offences mentioned in Smith and
Hogan,
Criminal Law
(2nd
ed.,
1969),
pp.
143-144.
596
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