Lord Simon of Glaisdale also suggested that their Lordship’s best course of action would be “to overrule the cases where duress has been allowed to be a defence negativing the crime, leaving duress as a matter of mitigation of sentence in crimes other than homicide, and in homicide as a defence reducing murder to manslaughter” but he did reserve his judgement on this as he was aware that policy decisions would be involved in any such reform to the law of duress and that this would need to be considered in Parliament, as the Law commission were currently examining the law of duress.
This sentiment with regards to changing the result of a successful plea of duress from one which provides an acquittal to one which would reduce sentences through mitigation was also shared by Lord Kilbrandon within his dissenting judgement in Lynch “It seems to me probable therefore that the solution ultimately found is the allowing of duress, or necessity, as a defence to all crimes, in the sense of only mitigating penalty and if murder is to continue as a crime visited upon conviction with a mandatory sentence, it would be perfectly reasonable, for the reasons I have indicated, to make duress or necessity ground for declaring diminished responsibility”
In Abbott, Lord Wilberforce in his dissenting judgement found at p.681 that there was “no convincing reason on principle, why, if a defence of duress in the criminal law exists at all, it should be absolutely excluded in murder charges whatever the nature of the charge” and that “Exclusion, if not arbitrary, must be based either on authority or policy.”
Concerns were raised by Lord Wilberforce in his judgement in Abbott about Lynch having become an authority which had invented a new defence contrary to fundamental legal doctrine. He stated at p.685 “The house is not inventing a new defence: on the contrary, it would not discharge its judicial duty if it failed to define the law’s attitude to this particular defence in particular circumstances”
In the case of R v Howe and Bannister the court used the Practice Statement; to depart from Lynch and it was held that duress is not available as a defence to murder either to principal or accessory. Lord Hailsham of Marylebone stated in his judgement that “I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest as did the majority in Lynch or the minority in Abbott that the ordinary man of reasonable fortitude is not supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.”
This decision seems to expect a heroic action by the ordinary man in circumstances where the instinct of self-preservation may well overwhelm any moral concept of right and wrong, and is in itself the subject of much debate.
In Howe, as in the previous cases the view that duress should not be used for complete acquittals but for mitigation was re-iterated. Lord Bridge of Harwich stated in Howe *436 that “the law might have developed more logically had it adopted the view of Stephen in his, that duress should not be a matter of defence, but of mitigation.”
One point that appears to be generally perceived by the judges is that the defence of duress requires defining with a certain degree of precision that only legislation and not judicial development can offer. Lord Hailsham makes this quite clear at the conclusion of his judgement in Howe that if duress can be made available generally as a defence to murder such a reform should be made by legislation as has been proposed by . “Not only is it for Parliament to decide whether the proposed reform of the law is socially appropriate, but it is also by legislation alone, as opposed to judicial development, that the scope of the defence of duress can be defined with the degree of precision which, if it is to be available in murder at all, must surely be of critical importance.” Lord Brandon of Oakbrook was also convinced that legislation should be the way forward and stated in the same judgement that the title of this discussion is drawn from; “that alteration should be made by legislation and not by judicial decision.”
Furthermore, in R v Gotts it was held that following the decision in R.v Howe; duress is no defence to murder and it is illogical to apply this defence to attempted murder. Due to uncertainty as to whether or not at that time the law permitted duress to be pleaded as a defence to a charge of attempted murder there were again suggestions that Parliament should legislate. Lord Browne –Wilkinson stated in R v Gotts that “I therefore agree that the appeal should be dismissed but express the hope that Parliament will consider the whole question of duress as a defence to all crimes with particular reference to the question whether duress is not better regarded as a mitigating factor than as a defence.”
To conclude this discussion we must look at the proposals for reform. The Law Commission has recommended that the defence of "duress by threats" is available to all offences, apparently departing from Howe. Amongst the arguments that have been made in its Consultation Paper for extending the defence to murder and attempted murder it is noted that innocent life is not effectively protected by a rule of which the actor is unlikely to be aware, and that there is little point in a law requiring heroism from those incapable of it.
The Law Commission defines this defence in the following terms
In the event that the proposal to extend duress as a complete defence is rejected, the Law Commission's view is that it should at least operate as a partial defence, reducing liability to manslaughter in cases of murder.
BIBLIOGRAPHY
DPP for Northern Ireland Respondent v Lynch [1975] A.C. 653
Stanley Abbott v The Queen [1977] A.C. 755
R v Howe and Bannister [1987] A.C 417
R v Gotts [1992] 2 A.C. 412
CMV Clarkson & HM Keating, Fifth Edition 2003
Word Count
Excluding Title, Bibliography and Footnotes=1300 words.
DPP for Northern Ireland Respondent v Lynch [1975] A.C. 653
Stanley Abbott v The Queen [1977] A.C. 755
Smith and Hogan, Criminal Law, 3Rd ed. (1973), p. 166
R v Howe and Bannister [1987] A.C 417
(Judicial Precedent) [1966] 1 W.L.R.1234
History of the Criminal Law of England (1833) vol.2, p.108
The Law Commission report, No 83
R v Gotts [1992] 2 A.C. 412
(1993, No. 218) in clause 25 of the draft Criminal Law Bill:
"A person does an act under duress by threats if he does it because he knows or believes- (a) that a threat has been made to cause death or serious injury to himself or another if the act is not done; and (b) that the threat will be carried out immediately if he does not do the act or, if not immediately, before he or that other can obtain official protection; and (c) that there is no other way of preventing the threat being carried out; and the threat is one which in all the circumstances (including any of his personal characteristics that affect its gravity) he cannot reasonably be expected to resist.”
