R V Howe [1987] AC 417, House of Lords

Introduction

It will be critically analysed in this study whether the ruling of the House of Lords in ‘Howe (1987) 1 AC 417’ was acceptable and whether the notion that duress is not a defence to murder should continue to apply. Various academic opinion will be analysed and a review as to whether some change ought to be made will be considered. Thus, it will be demonstrated that although duress should not be a complete defence to murder, it should be a partial defence as there are some situations which lead to injustice on the basis that this defence is not available to them.

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Duress is a common law defence that seeks to protect individuals that have been forced or compelled to commit a crime. The defence of duress provides an exception to the rule that a person shall be held responsible for any crimes they commit on the basis that they had not done so voluntarily. As the defence is open to abuse, caution needs to be taken by the Courts when allowing the defence to be submitted. Accordingly, restrictions are needed to ensure that the level of threat the defendant has been subjected to is not menial. Hence, as noted by Spain; the defence of duress “fails to recognise the reality that one will not need to be subjected to a specific type or level of threat for one’s will to be overborne.”[2] Furthermore, it is also important that the crime is not disproportionate to the threat in order for this defence to prove successful. This will prevent an abuse of the defence from occurring as individuals will not be able to take advantage of the defence in all circumstances.

An example of this can be seen in relation to murder where the defence of duress is not generally accepted by the Courts. This is because, it is difficult to persuade the Court that a person has been forced or compelled into committing a crime when the harm that has been caused, is greater than the harm that has been threated. In deciding whether a defendant can use this defence, nonetheless, the Courts will have to use the proportionality test, which is both subjective and objective. In R v Howe it was held that a jury should consider whether;

• a) the defendant acted in this way because he honestly believed that his life was in immediate danger;
• b) a reasonable person of the same characteristics of the defendant would have acted in the same way. Here, it was, nonetheless, found that duress could not be a defence to murder. This decision has been the subject of much controversy over the years with conflicting views as to whether the defence of duress should in fact apply to murder.

On the one hand, it is believed by Shankland that duress should serve as a valid defence to murder on the basis that a murder which has been committed as a result of duress should be distinguished from a murder that was pre-meditated. On the other hand, it was said by Toczek that defendants should not be able to rely upon the duress defence for murder as this could not be deemed a ‘reasonable’ belief as required by the Court in Howe.Accordingly, it would be difficult to establish that a person’s belief to commit murder was ‘reasonable’ on the basis that they were subjected to duress. The Court in the more recent case of R v Hasan agreed with the Howe decision and made it even more difficult for the defence of duress to be successfully raised in all criminal cases. Here, it was argued that rather than merely finding that the defendant had a ‘reasonable’ belief, it must be shown that they had an ‘actual’ belief in the efficacy of the threat which compelled the defendant to commit the act.

Arguably, it became apparent from this decision that rather than defendants demonstrating that they had a reasonable belief, they are now required to show that the reasonable belief was also a genuine one. The Law Commission have also expressed their concerns as to whether duress should apply to murder and have considered including duress as a partial defence to murder.This would mean that first degree murder could be reduced to second degree murder, whilst second degree murder could be reduced to manslaughter. Whilst this would provide some protection to those individuals who have genuinely feared for their own or families life in committing the crime, it would prevent the scope being broadened too far. Accordingly, it has been said that moral involuntariness should be excused and that regardless as to what crime the defendant had committed, duress should be capable of being used as a defence.Hence, it is said that the defendants fear or lack of courage should be given due consideration as these are central to the rational of the defendant.

Conclusion

Overall, it is evident that there are mixed opinions as to whether duress should be used as a defence to murder, yet whether this would broaden the scope too far is likely. This is because the defence would most likely be open to abuse if it could be used in circumstances such as this. Individuals would be capable of demonstrating that they had been subjected to duress in order to escape criminal liability for murder. This would be unjust in many situations as it cannot be said that the life of a human being is proportionate to a threat that has been made. Nevertheless, in order to ensure that complete liability is not imposed upon defendants in circumstances where they genuinely feared for their life, it could be said that duress should be used as a partial defence to murder. This would prevent defendants from completely escaping liability, yet it would provide the Courts with some leeway when considering certain cases that would require a defence, such as domestic violence victims.

References

1. E Spain., The Role of Emotions in Criminal Law Defences: Duress, Necessity and Lesser Evils, (Cambridge University Press, 2011).
2. The Law Commission., Murder, Manslaughter and Infanticide: Project 6 of the Ninth Programme of Law Reform; Homicide, (The Stationary Office, 2006).
3. G Williams., ‘Necessity: Duress of Circumstances or Moral Involuntariness?’ Common Law World Review, Volume 43, Issue 1, 1.
4. L Toczek., ‘A Case of Duress’ The New Law Journal, Volume 155, Issue 7173, 612.
5. M Sorarajah., ‘Duress and Murder in Commonwealth Criminal Law’ (1981) The International and Comparative Law Quarterly, Volume 30, No 3, 660-661.
6. R Shankland., ‘Duress and the Underlying Felony’ (2009) Journal of Criminal Law and Criminology, Volume 99, Issue 1227.

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