Duress Is Not a Defence to Murder - Essay Example

? Assessment Task Critically Analyse the Ruling of the House of Lords in Howe [1987 AC 417 That Duress Is Not a Defence to Murder Introduction Theword ‘duress’ can be explained as a compulsion on an accused by a third party to carry out a murder, or else , he might have witnessed a cruel harm, including death from such a third party. In case , if the danger of an instant death or grave personal injury is so violent to overcome the ordinary powers of human resistance,then, duress is allowed as a defence.1 This research essay will analyse how duress cannot be claimed as a defence to murder as held in R v Howe with decided other case laws on the subject. Analysis In Attorney-General v Whelan, 2 it was held that duress is a threat with an instant death or grave body injury to the defendant, and if he refuses to carry out the order of a third party and it should be acknowledged as a validation for action, which would else be regarded as a criminal offense.3 In the earlier times, if duress is claimed as a defence, then the prosecution has the duty to prove beyond doubt that the defendant was not indulged in a crime under duress. However, now, the onus to prove the duress defence claims rests with an accused. Duress cannot be successful in case where there is a claim of peril of lesser harm such as damage to assets or false imprisonment. As held in R v Howe, if there is an instant threat of a serious body injury or death, then defence under duress can be claimed for crimes other than murder and treason.4 Under English law, duress as a defence is not available to attempted murder, murder, or any kind of treason. In R v Howe,5 Michael Howe and John Bannister asserted that they took part in two cruel attacks, which caused a young man’s death, mainly because they were compelled by another rowdy with an extensive criminal history. Hence, the crucial issue was whether duress was a valid defence in murder cases. A defendant may claim duress as an excuse that connotes the defendant had been compelled to act under such a harsh danger that precluding from the crime could not rationally be expected.6 Duress by circumstances and duress by threat are differentiated as to the basis of the threat. Duress per minas (by a threat) starts from a human peril while duress by circumstances involves a peril of natural origin. Both threats can qualify as a valid excuse. In DPP for Northern Ireland v Lynch, 7 Lord Simon observed that duress is just a specific usage of the canon of necessity. In this case, it was held by the Lords that defence of duress was available to a collaborator. In this case, the lords observed that where a defendant is left with two alternatives, which are between the peril of death or grave injury, and if he wantonly put an end to life of an innocent, an ordinary individual should think that one naive human life is as precious as that of his family members and in such event, the defendant cannot argue that he is preferring the least significant of the two evils. Likewise, in R v Gotts,8 it was held that duress is not a justification to an attempted slaughter.9 In normal parlance, the courts would not acknowledge a defence of duress when an abnormal injury is made by the defendant .This is known as a test of proportionality as held in R v Howe.10 Likewise, the duress shield can fail if the prosecution is able to demonstrate that the defendant had a chance to avert the threat from the third party by taking timely help from the police, and if the defendant neglected to do so, the defence of duress would not be successful as held in R v Hasan.11 Lord Bingham in the R v Hasan case viewed that the peril may be to the defendant or to his family or to a known person of the defendant. Hence, peril against the welfare of the defendant’s family, or to his life or to the life of the person known to the defendant, will be an adequate proof of duress.12 In R v Fitzpatrick,13 it was held that a gang member who had been compelled to indulge in murder could not raise a defence of duress.14 In R v Dudley Stephens,15 the court did not acknowledge the defence of necessity where two sailors killed the cabin boy and ate his flesh for their survival when they were in the mid-sea.16 It is pertinent to note that the Law Commission in its 1993 report viewed that duress should be available to both murder and attempted murder. However, Lord Bingham did not accept this in the R v Hasan case.17 In Salabiaku v France18 and in Phillips v UK,19 the ECHR Court observed that putting the onus on the defendant to prove duress in murder cases did not infringe Article 6 if it was restricted within ‘adequate limits’.20 In R v Hegarty,21 it was held that expert’s evidence to demonstrate that the defendant was ‘sensitively not stable or in a repulsively elevated condition’ was not admissible.22 However, in R v Emery,23 the Court of Appeal held in obiter dicta that expert evidence as to the effects and causes of the accused vulnerability can be accepted.24 In R v Sharp,25 it was held that if the defendant is a member of a gang, defence of duress is not available.26 In R v Heath,27 it was held by the Court of Appeal that if a defendant is a heroin addict, he cannot not claim duress defence.28 Conclusion Lastly, as regards availability of duress as a shield of defence , the Courts in UK and Ireland have acknowledged as a complete and general defence to all crimes except murder and treason. As per the verdict held in R v Howe, an accused cannot succeed in raising duress as a defence with respect to a murder charge either as a prime accused or as an accomplice.29 Thus, the R v Howe case overruled the decision in DPP for Northern Ireland v Lynch30 by viewing that the defence of duress was unavailable to an accused charged with murder or an accomplice in a murder case or an abetter or aider of a murder. Some critics are of the view that it is unjust to punish those accused or an accomplice who indulged in murder due to duress. The House of Lords footed its verdict mainly on social policy panorama, and if it is encouraged, it may end up in the rising tide of crimes in society.31 [Word Count: 1,098] Excluding essay question, footnotes, bibliography & list of cases Bibliography Books Harris P, An Introduction to Law (Eighth Edition, Cambridge University Press 2008) Herring J, Criminal Law: Text, Cases and Materials (5th edition, Oxford University Press 2012) Horder J, Excusing Crime (5th edition, Oxford University Press 2012) Jason-Lloyd L, Misuse of Drugs: A Straightforward Guide to the Law (1st edition, Waterside Press 2008) Slapper G & Kelly D, The English Legal System 2011-2012 (9th edition, Taylor & Francis 2011) Spain E, The Role of Emotions in Criminal Law Defenses: Duress (Cambridge University Press 2005) Stone R, Offences Against the Person (1st edition, Cavendish 1999) Journal Articles Beaumont J, ‘Duress as a Defence to Murder’ [1976] Dalhousie LJ 3 580 Dennis I, ‘Developments in Duress’ [1987] J. Crim. L. 51, 463 Duff RA, ‘Towards a Theory of Criminal Law?’ [2010] Aristotelian Society Supplementary 84 (1) Kenny A, ‘Duress per minas as a defence to crime: II’ [1982] Law and Philosophy 1(2) 197–205 Kooijmans T, ‘The Burden of Proof in Confiscation Cases: A Comparison between the Netherlands and the United Kingdom in the Light of the European Convention of Human Rights’ [2010] European Journal of Crime, Criminal Law and Criminal Justice 18(3) 225–236 Mackay RD and Colman AM, ‘Equivocal Rulings on Expert Psychological and Psychiatric Evidence: Turning a muddle into nonsense’ [1996] Criminal Law Review 88–72 Monahan P, ‘Constitutional Cases 2001: An Overview’ [2002] Supreme Court Law Review 16 5-22 List of Cases Attorney-General v Whelan DPP for Northern Ireland v Lynch R v Emery R v Fitzpatrick R v Gotts R v Hasan R v Heath R v Hegarty R v Howe R v Sharp R.v Dudley Stephens Read More