Recent Judicial Decisions

AuthorJohn Wood
Published date01 October 1987
Date01 October 1987
DOIhttp://doi.org/10.1177/0032258X8706000411
Subject MatterArticle
PROFESSOR SIR JOHNWOOD, C.B.E., LL.M.
The University
of
Sheffield.
Legal Correspondent
of
the Police Journal.
RECENT JUDICIAL DECISIONS
NEW MORALS
R. v. Howe
and
Bannister; R. v. Burke
and
Clarkson
(1987) 151J.P. 473;
[1987]
2 W.L.R.568 House of Lords
Although the legal point is a simple one on duress, the cases
involved in this appeal (Howe
and
Bannister; Burke
and
Clarkson)
are somewhat complicated. Howe and Bannister are two of four who
were accused of two murders and one conspiracy to murder where
the victim escaped. Burke and Clarkson were charged with one
murder. The Court of Appeal dismissed the appeals against
conviction and three questions were put to the House of Lords. 1. Is
duress available as a defence to a person charged with murder as
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 threat as the
defendant did?
Complicity in the various offences is complicated. In the first case,
three of the accused were under 21, the fourth, Murray, 34. The
youngsters had records not involving violence. Murray had. He had
been sentenced for robbery to eight years' imprisonment. The first
murder involved beating, sexually assaulting and kicking the victim.
Bannister, who was threatened himself with violence, and Howe
kicked and punched: Bailey killed with a headlock, although the
other violence would soon have resulted in death. The appellants
said that they were frightened that they would be treated in the same
way
if
they did not do what Murray said. They were principals in the
second degree and their defence of duress was left to the jury. The
second murder was similar. Murray told the appellants to kill the
victim. He was punched, kicked and fmally strangled with a shoe-
lace. Both appellants had actually taken part in the killing so, as they
were principals in the first degree, the trial Judge did not leave the
plea of duress to the jury. The third, intended, victim escaped.
Duress was left to the jury in the resulting charge of conspiracy to
murder.
Burke, disguised as a policeman, had shot the victim dead. He
said he had done this at Clarkson's request so as to prevent the
victim testifying against Clarkson. He feared that Clarkson would
otherwise kill him. Burke claimed that the gun had gone off
unintentionally and so the offence was manslaughter. Clarkson
denied all connexion with the shooting. The trial saw both accused
337 October1987

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