Recent Judicial Decisions
| DOI | 10.1177/0032258X8205500313 |
| Date | 01 July 1982 |
| Published date | 01 July 1982 |
| Subject Matter | Article |
PROFESSOR
SIR
JOHN
WOOD,
C.B.E., LL.M.
The University
of
Sheffield.
Legal Correspondent
of
the Police Journal.
RECENT
JUDICIAL
DECISIONS
DURESS
R. v. Graham [1982] I W.L.R. 294 Court of Appeal
The accused was a homosexual. He lived with his wife and another
homosexual. In a nearby flat were two further homosexuals.
Difficulty arose because of the violent behaviour
ofthe
homosexual
who lived with the couple, directed against the wife. As a result, in
one incident, the accused suffered a cut finger and the wife left the
flat. The two men stayed and were joined by one of the neighbours.
They
drank
together and indulged in homosexual practices. The
accused, who had suffered from depression, was taking valium.
It
was suggested to him by his flat mate that they might get rid of the
wife "once and for all". A plan was hatched. The accused got hiswife
to return by pretending that he had cut his wrists. Whilst she was
looking at his bandaged wrists, the flat mate put an electric flex
round her neck. Eventually, with the accused's assistance, the wife
died. Both men dumped the body and made the flat look as if it had
been robbed. The accused then reported his wife missing.
The defence raised the plea of duress. The prosecution did not
object to this.
It
had been clearly laid down in
D.P.P.for
Northern
Ireland v. Lynch [1975] A.C. 652 and
Abbott
v. The Queen
[1977]
A.C. 752
that
the defence of duress is not available to a person who
has actually done amurder - the principle in the first degree. This
was no
doubt
because he said that when he was pulling the flex the
plug came off the end, raising doubts as to whether he administered
the coup de grace.
The Judge put the issue of duress to the jury as two points. They
had first to accept
that
the accused feared for his own life ifhe had
not
acted as he did. They had to find a genuine belief in that threat. The
direction on this was said to be correct, although the Court of Appeal
put the precise formula as - was this man at the time of the killing
taking part because he had a well-grounded fear of death (or serious
personal injury), and added that the phrase in brackets might be too
favourable to the defence in the circumstances.
The second point was whether the acceptanceby the accused of the
duress was reasonable. The objective/subjective issue. The Judge
clearly took the objective view. The appeal took the point that this
second question was improper. The test was subjective so that if the
accused felt he had to bow to duress, properly established, he had
established the defence. The Judge's direction asked the
jury
to take
July 1982 291
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