The Historical Development of Duress and the Unfounded Result of Denying Duress as a Defence to Murder
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/00220183221093993 |
| Author | Amy Elkington |
| Date | 01 June 2023 |
| Subject Matter | Articles |
The Historical Development of
Duress and the Unfounded Result of
Denying Duress as a Defence to
Murder
Amy Elkington
Senior Lecturer of Law at the University of Chichester
Abstract
Duress provides an excuse to most crimes but since Howe is excluded to murder. This means
someone who kills due to a fear of death or serious injury is denied the defence and instead
faces a conviction, and life imprisonment, for murder. This article focuses on the origins of duress
to establish that duress was introduced to excuse treason and as such was used to excuse unlawful
killing. In Howe, rather than following Dudley and Stephens, there were other binding and persuasive
precedents the Lords could have followed to reach the decision that duress should be available to
murder. Furthermore, some of the most influential opinions in denying the defence to murder,
Hale and East, were voiced without reference to case authority. In conclusion, there is no historical
doctrine for denying duress to murder and doing so today is historically unfounded.
Introduction
The rationale for excusing those who act under a threat from another is that, ‘as punishments are only
inflicted for the abuse of free-will, which God has given to man, it is highly just and equitable that a
man should be excused for those acts, which are done through unavoidable force or compulsion’.
1
In
cases of duress, the defendant has chosen to commit a criminal offence when the alternative is that he
himself, or someone he feels responsible for, would be subjected to death or serious harm. The defendant
can be excused from his crime as he acted under compulsion.
Despite the existence of duress for many centuries, it has never been legislated upon by Parliament. As
a result, the defence has been left to develop through common law. Holdsworth reflected ‘at all periods of
our history it has been far more difficult to extend the criminal law by a process of judicial decision than
Corresponding author:
Amy Elkington, Senior Lecturer of Law at the University of Chichester.
Email: a.elkington@chi.ac.uk
1. William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765 -1769, vol 4 (Oxford
University Press: Chicago, 1979) 27. See also, James Fitzjames Stephen, History of the Criminal Law of England, vol 2
(Cambridge University Press: London, 1883) 97 who states that to be guilty of an offence the defendant must act voluntarily
and be free from compulsion.
Article
The Journal of Criminal Law
2023, Vol. 87(3) 207–217
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183221093993
journals.sagepub.com/home/clj
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