R v Howe; R v Bannister; R v Burke; R v Clarkson
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 27 January 1986 |
| Judgment citation (vLex) | [1986] EWCA Crim J0127-10 |
| Docket Number | Nos. 6193/R/84, 6302/R/84, 765/R/85 857/R/85 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 January 1986 |
[1986] EWCA Crim J0127-10
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Russell
and
Mr. Justice Taylor
Nos. 6193/R/84, 6302/R/84, 765/R/85
and
857/R/85
MR. H. SELF, Q.C. and MR. R. WARNE appeared on behalf of the Appellant Burke.
MR. A. SUCKLING, Q.C. and MISS D. ELLIS appeared on behalf of the Appellant Clarkson.
MISS A. CURNOW, Q.C. and MR. T. LANGDALE appeared on behalf of the Crown.
MR. H. SELF, Q.C. and MR. P. CRICHTON-GOLD appeared on behalf of the Appellant Howe.
MR. H. SELF, Q.C. and MR. F. BURNS appeared on behalf of the Appellant Bannister.
MR. B. HYTNER, Q.C. and MR. J. FOSTER appeared on behalf of the Crown.
These appeals arise out of two separate cases. The issues in each are largely similar. We therefore decided, with the consent of the parties, to hear them together.
Howe and Bannister were convicted on 28th January at Manchester Crown Court before Mr. Justice Jupp and a jury on two counts of murder (counts 1 and 2) and one count of conspiracy to murder (count 3). Howe received concurrent sentences of custody for life; Bannister of life imprisonment.
There were two other men, Murray and Bailey, charged jointly with them. These two changed their pleas to guilty during the trial. Bailey was sentenced to concurrent terms of custody for life; Murray to concurrent terms of life imprisonment with a recommendation that he should serve a minimum of 25 years.
At the time of the offences Howe and Bailey were 19, Bannister was 20 and Murray was 35. Howe had one minor conviction for motoring offences. Bannister had convictions for theft and burglary but none for violence. He was on probation. Bailey had convictions for burglary and theft. Murray had 25 previous court appearances, including two convictions for assault occasioning actual bodily harm, and in 1974 he had been convicted of assault with intent to rob and robbery in respect of which he had been sentenced to eight years' imprisonment.
Bannisrer met Murray in Risley Remand Centre. Howe and Bailey met in Stockport when Bailey was living in a hostel and Howe happened to be living next door with his grandmother. Murray came to visit Bailey when he was on six days' home leave from a sentence of two and a half years' imprisonment. Bailey introduced Howe to Murray. Thus the four men by 6th October 1983 four days before the first murder, were all acquainted with each other and from 8th October to 13th October, when they were arrested, they spent most of their time together. Murray was the dominant figure. He was evidently a dishonest, powerful, violent and sadistic man.
Count 1: Murder of Elgar:
The first victim was a 17-year old youth called Elgar. He was offered a job as a driver by Murray. On the evening of 10th October all five men were driven by Murray up into the hills between Stockport and Buxton, eventually stopping at some public lavatories at a remote spot called Goytsclough. Murray at some stage told both appellants in effect that Elgar was a "grass", and that they were going to kill him. Bannister was threatened with violence if he did not give Elgar "a bit of a battering". From thenceforwards Elgar, who was naked, sobbing and begging for mercy, was tortured, compelled to undergo appalling sexual perversions and indignities, he was kicked and punched. Bannister and Howe were doing the kicking and punching. The coup de grace was executed by Bailey, who strangled Elgar with a headlock. It is unnecessary to go into further details of the attack on Elgar which are positively nauseating.
In brief the two appellants asserted that they had only acted as they did through fear of Murray, believing that they would be treated in the same way as Elgar had been treated if they did not comply with Murray's directions.
The prosecution were content to assent to the proposition that death had been caused by Bailey strangling the victim, although the kicks and punches would have resulted in death moments later even in the absence of the strangulation. The body was hidden by the appellants and the other two men.
On this basis the appellants were in the position of what would have earlier been principals in the second degree and duress was left to the jury as an issue on this count.
Count 2: Murder of Pollitt:
Very much the same course of conduct took place as with Elgar. On 11th October the men picked up Pollitt, a 19-year old labourer, and took him to the same place where all four men kicked and punched the youth. Murray told Howe and Bannister to kill Pollitt, which they did by strangling him with Bannister's shoe lace. As the appellants were in the position of principals in the first degree, the Judge did not leave duress to the jury on this count.
Count 3: Conspiracy to murder Redfern:
The third intended victim was a 21-year old man. The same procedure was followed, but Redfern asupected that something was afoot and managed with some skill to escape on his motorcycle from what would otherwise have inevitably been another horrible murder. The Judge left the defence of duress to the jury on this charge of conspiracy to murder.
The grounds of appeal, which are the same in respect of each of these appellants, are as follows: That the Judge erred in directing the jury – (1) in respect of count 2, that the defence of duress was not available to a principal in the first degree to the actual killing; (2) in respect of counts 1 and 3, that the test as to whether the appellants were acting under duress contains an "objective" element; that is to say, if the prosecution prove that a reasonable man in the position of the defendant would not have felt himself forced to comply with the threats, the defence fails.
I now turn to the case of Burke and Clarkson.
These two appellants on 16th October 1984 at the Central Criminal Court before the then Common Serjeant were convicted of murder. Burke was sentenced to custody for life (misdescribed in the sentencing remarks); Clarkson was sentenced to life imprisonment with a recommendation that he serve a minimum of 25 years.
The facts were as follows. On the evening of 9th July 1983 the appellant Burke, then aged 18, shot a 63-year old criminal called Henry Botton at point blank range with a sawn-off shotgun on the doorstep of Botton's house. The prosecution's case was that Burke had done this at the request of Clarkson, who was anxious to prevent Botton from giving evidence against him.
Clarkson's defence was that he had nothing to do with the shooting at all. Burke's defence was that he had agreed to shoot Botton because of his fear that Clarkson would kill him if he did not, but when it came to the event, the gun went off accidentally and the killing therefore was unintentional and amounted to no more than manslaughter. Burke's defence of duress was only left to the jury in respect of manslaughter.
Burke's grounds of appeal are that (1) the Judge was wrong in not leaving the defence of duress to the jury so far as murder was concerned, i.e. a similar submission as that contained in the first ground of appeal in the Howe and Bannister case, and (2) that the Judge was wrong in directing the jury that the culpability of a secondary party can be no higher than that of the principal party, and that accordingly if they found Burke guilty of manslaughter only, then Clarkson could only be guilty at the most of manslaughter, and if they acquitted Burke on the grounds of duress, Clarkson too must be acquitted altogether. Counsel for Burke submits that that alleged misdirection may have induced the jury to return a perverse verdict of guilty of murder against Burke when they did not believe him to be guilty, simply to ensure that they could convict Clarkson whom they no doubt believed to be the real villain.
Mr. Self on behalf of the appellants has addressed to us an impressive argument, supported by a galaxy of opinions, some judicial, some academic, designed to demonstrate what the law ought to be in regard to duress in murder cases. Trial Judges are obliged to explain to the ordinary men and women sitting on the jury in language they can understand what the law is. Their task, already difficult, would become impossible if they were obliged to direct the jury not upon what the law is but on what it ought to be but is not. That is not their duty.
The Judges discover the law either from the words of the relevant statutes or, so far as common law offences are concerned, from earlier decisions of other Courts which are binding upon them or have persuasive authority. They may often be assisted by eminent writers of commentaries, or by academic writers, in so far as they have distilled the essence of judicial decisions. Judges should however be careful to disregard those parts of their writings which suggest what the law ought to be but is not.
Just as the trial Judge must decide what the present law is, so must this Court decide whether the trial Judge came to the right conclusion. It is no more our task than his to decide what the law ought to be, although we may express our views obiter for what they are worth, if we feel the situation so demands.
What then was the law relating to duress in murder cases which these two Judges were obliged to expound?
Until 1975 there was, we think, no difficulty. Kenny, 15th Edition (1936) at page 84 expresses the matter with his usual felicity as follows: "It is ….. clear that threats of the immediate infliction of death, or even of grievous bodily harm, will excuse some...
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