R v Howe; R v Bannister; R v Burke; R v Clarkson

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeThe Lord Hailsham of St. Marylebone,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Griffiths,Lord Mackay of Clashfern
Judgment Date19 February 1987
Judgment citation (vLex)[1987] UKHL J0219-3

[1987] UKHL J0219-3

House of Lords

Lord Chancellor

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Griffiths

Lord Mackay of Clashfern

Regina
and
Burke
(Appellant)
(on Appeal from the Court of Appeal (Criminal Division))
Regina
and
Howe
(Appellant)
(on Appeal from the Court of Appeal (Criminal Division))
Regina
and
Bannister
(Appellant)
(on Appeal from the Court of Appeal (Criminal Division))
(Conjoined Appeals)
Regina
and
Clarkson
(Appellant)
(on Appeal from the Court of Appeal (Criminal Division))
The Lord Hailsham of St. Marylebone

My Lords,

1

These appeals arise from two cases, one originating from a trial in the Manchester Crown Court before Jupp J. and a jury, (Howe and Bannister) and one in the Central Criminal Court before the then Common Sergeant, Judge Tudor Price and a jury (Burke and Clarkson).

2

Howe and Bannister were tried with two other defendants (Murray and Bailey) both of whom during the trial changed their plea to one of guilty and were appropriately sentenced.

3

The indictment in the case of Howe, Bannister, Murray and Bailey accused the four men of two murders (Elgar and Pollitt) and a conspiracy to murder (Redfern, an intended victim who escaped in time). The three counts related to three successive days, respectively 10, 11 and 12 October 1983.

4

Burke and Clarkson were charged with the murder of a single victim (Botton) on 9 July 1983.

5

The four current appellants appealed against their convictions to the Court of Appeal (Criminal Division) [1986] 1 Q.B. 626 who dismissed all four appeals in a judgment delivered on 21 January 1986. In giving leave to appeal to your Lordships' House the Court of Appeal (Lord Lane C.J., Russell and Taylor JJ.) certified three questions of law of general public importance as involved in the decision. The three certified questions are:

  • "(1) Is duress available as a defence to a person charged with murder as a principal in the first degree (the actual killer)?

  • (2) Can one who incites or procures by duress another to kill or to be a party to a killing be convicted of murder if that other is acquitted by reason of duress?

  • (3) Does the defence of duress fail if the prosecution prove that a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats as did the defendant?"

6

The first of these questions involves a reconsideration of the much discussed decisions in Director of Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653 and Abbott v. The Queen [1977] A.C. 755.

7

In answering the second question, the Court of Appeal invited us to reconsider the decision of the Court of Appeal in Reg. v. Richards [1974] Q.B. 776, by which it considered itself bound.

8

In the arguments presented before your Lordships many other reported authorities and citations from established writers, including Law Commission Report No. 83 on "defences of general application" printed by order of the House of Commons, dated 27 July 1977.

9

Reference to other cases will be made as and where appropriate. I take the facts of these truly horrible cases almost verbatim from the judgment of the Lord Chief Justice in the instant appeal [1986] 1 Q.B. 626. First, as to the case of Howe and Bannister, Murray and Bailey, the facts were as follows:

10

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.

11

Bannister 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. The Lord Chief Justice continued at pp. 635-636:

12

"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 10 October 1983 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 directons.

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.

13

"Count 2: murder of Pollitt:

Very much the same course of conduct took place as with Elgar. On 11 October 1983 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.

14

"Count 3: conspiracy to murder Redfern:

The third intended victim was a 21-year-old man. The same procedure was followed, but Redfern suspected 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."

So much for the facts relating to the appellants Howe and Bannister.

The Lord Chief Justice then turned to the case of Burke and Clarkson. In the case of Howe and Bannister the defence of duress was left to the jury by Jupp J. on the third count of conspiracy to murder and rejected by the jury. However, Jupp J. had directed the jury in relation to duress. In this case Burke dressed as a policeman had killed Botton with a sawn off shotgun at the entrance of Botton's house. The Lord Chief Justice continued at p. 637:

"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.

"This defence was evidently rejected by the judge, but his defence in respect of manslaughter was left to the jury.

15

A further submission on behalf of Burke was not argued before us. On the third certified question Jupp J.'s direction to the jury on the nature of duress, although not identical with that of Judge Tudor Price equally raised the question of the objective element in the threats required raised by the third question certified by the Court of Appeal. The only ground of appeal separately argued before your Lordships on the part of Clarkson depends on the answer to be given to the second certified question to which I will return later.

16

On the third certified question Mr. Self on behalf of the appellants other than Clarkson addressed to us an impressive argument that the test applied is not objective, i.e. not:

"… whether the threat was of such gravity that it might well have caused a reasonable man placed in the same situation as the defendants to act as the defendant did"

17

nor …

"would a sober person of reasonable firmness sharing the defendant's characteristics have responded to the threats by taking part in the killing?"

18

Mr. Self's submission was to the effect that where the defence of duress is available to an accused, the test of duress does not contain either of these objective elements but is purely subjective to the accused and depends solely on the effect which the actual threat had on the mind of the particular accused.

19

From the above, it will be...

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