Judicial Committee of the Privy Council
| Published date | 01 January 1977 |
| Date | 01 January 1977 |
| DOI | 10.1177/002201837704100107 |
| Subject Matter | Article |
Judicial Committee
of
the
Privy Council
Comments
on Cases
DURESS AS A DEFENCE
TO
MURDER
Abbott v. The
Queen
The
appeal
of the accused, who
had
been convicted
of
murder,
in
Abbottv. The
Queen
(1976,3 All E.R. 140), was
stated
by
Lord
Salmon to
raise a
point
of law
of
great
importance,
namely
does duress afford a
defence to
anyone
charged,
as principal in the first degree, with the
crime
of
murder?
The
facts
proved
at
the trial disclosed
that
a
particularly
brutal
murder
of
a
woman
had
been committed on the orders of a
man
named
Malik, who, by the time of this
appeal,
had
been convicted of,
and
hanged
for,
murder.
The
appellant
in the
instant
case
argued
that
he
had
been
no
more
than
aprincipal in the second degree
and
that
he was
therefore entitled to an
acquittal
(or
at
least to a new trial) on the
ground
of
duress, on the
authority
of
Lynch
v. D.P.P.forN.J.
(1975,
A.C.
653;
39IC.L.
181).
On
the facts, however, it was
clear
that
he
had
taken
an active
part
in the
murder,
including the
stabbing
and
burying
alive
of
the
woman,
so
that,
as
principal
in the first degree, he could
not
avail
himselfofthe
rule established in Lynck'scase, where the
majorityofthe
House
of Lords held
that,
if
evidence
of
duress is led, it would afford a
complete defence to
anyone
charged
with
murder
as principal in the
second degree, unless
the
Crown
satisfied
the
jury
beyond reasonable
doubt
that
the accused
had
not
acted
under
duress. As the
Board
was of
the opinion, in Abbott's case,
that
there was evidence of duress which the
trial
judge
should
have
left to the
jury,
had
Abbott
been
charged
as
principal
in the second degree, his
appeal
raised the
net
question
whether
duress
can
afford adefence to one otherwise guilty as principal
in the first degree.
I t will be recalled
that
in Lynch'scase the
appellan
t
had
been forced
to drive three
men
to the
spot
at
which they
shot
apoliceman
and
then
to
return
them
to
the
spot
from which they
had
started.
InAbbott's case,
the
Board
were
prepared
to
accept
the opinion
of
the
majority
of the
House
in Lynch'scase on
the
facts which arose there,
but
Lord
Salmon
added
that,
had
they found themselves
constrained
to say (which they
did
not)
that
the
decision was an
authority
which
required
the exten-
sion
of
the doctrine
(of
duress) to cover cases like the present, they
would
not
have
accepted
it. Be
that
as it
may,
the
question
before the
Board
was
whether
Lynch'scase
applied
to a case in which the accused
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