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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(7) (20 December 2005) URL: http://www.bailii.org/ew/other/EWLC/2005/177(7).html Cite as: [2005] EWLC 177(7) |
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PART 7
DURESS AS A DEFENCE TO MURDER
QUESTIONS AND PROVISIONAL PROPOSALS
7.1 We ask:
(1) If "first degree murder" is confined to an intention to kill, should duress be a defence?
(a) If so, should duress lead to:
(i) a complete acquittal; or
(ii) a finding of "second degree murder"? (our provisional proposal)
[paragraphs 7.31-7.32] P>
(2) Should duress be a defence to "second degree murder"?
(a) If so, should duress lead to a complete acquittal?
(b) If not, should duress be no defence, but mitigate the sentence?
[paragraph 7.33]
(3) Should duress be a defence to attempted "first degree murder"?
(a) If so, should duress lead to a complete acquittal?
[paragraphs 7.60-7.62]
(4) In a case of "first degree murder", should the plea of duress on the part of a juvenile or young person result in more lenient treatment than it would for adults?
(a) If so, should duress lead to:
(i) a complete acquittal; or
(ii) a finding of "second degree murder" (as proposed for adults) but with greater mitigation in sentencing?
[paragraphs 7.72-7.73]
(1) In deciding whether a person of reasonable firmness would have acted as the defendant did, the jury can take into account all the circumstances of the defendant including his age other than those which bear upon his capacity to withstand duress.
[paragraphs 7.36-7.43]
(2) The defendant's view of the nature of the threat or circumstances must be one which is reasonably held.
[paragraphs 7.45-7.50]
We think that these will act as safeguards to ensure that the defence is not seen as a soft option.[1]
[paragraph 7.44]
INTRODUCTION
7.4 Under the present law, duress[2] is a defence to all crimes except murder, attempted murder[3] and possibly treason. It is a full excuse negating liability. Duress consists of an imminent threat, coming either from another person, in the form of "do-this-or-else" or from some natural source, such as an avalanche or a wild animal on the loose. We have previously expressed the view that duress should provide a defence to both murder and attempted murder.[4]In the recent House of Lords decision of Hasan it was said, "[t]he logic of this argument is irresistible."[5]
EXAMPLE 1: D sees her violent husband speeding towards her, waving a gun, as she is waiting in her car at the lights. She speeds off even though she realises she will crash into a pedestrian who is crossing in front of her. She realises that she will cause him serious injury. The pedestrian dies as a result of his injuries.
EXAMPLE 2: D1, a psychopathic father, compels his eleven year old son, D2, through threat of death to participate in the murder of one of D1's rivals. D2 does no more than hold his father's gun whilst his father forces open the door to the rival's house prior to the killing.
7.10 Injustice may also arise as a result of duress being a defence to all offences apart from murder. For example, D1 tortures D2 until D2 agrees to kill V. D2 kills V. In this scenario, D2 will have no defence of duress to a charge of murder, despite facing further torture if he refuses to kill V. In contrast, D1 will have a defence of duress to a charge related to committing torture, if D1 can show he was acting under threat of death or serious harm.[6] Arguably, D2 should also have some sort of defence to murder, even if it is only a partial defence reducing a more serious homicide offence to a less serious one.
DURESS UNDER COMMON LAW
Duress by threats
(1) Was … or may … have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part in the killing?[7]
7.12 A person who has knowingly exposed himself to the risk of the threat cannot avail himself of the defence.[8]
Duress of circumstances
7.13 The common law also recognises a defence of duress of circumstances.[9] A defendant acts under duress of circumstances if she acts (as in Example 1 at paragraph 7.5) because she reasonably believes[10] that such action is necessary to avoid death or serious injury to herself or another and the danger that she knows or believes to exist in all the circumstances is such that she cannot be expected to act otherwise. The execution of the threat which operates on the defendant need not be immediately in prospect.[11] An example would be a case in which a flood threatens to drown everyone sheltering in a basement as the basement fills rapidly with water. Someone has become frozen with fear on the ladder which leads to the upper floor and safety, thus preventing the others from escaping. If the defendant forcibly pushes the immobile person off the ladder back into the rising water, so that other lives can be saved, he can rely on duress of circumstances as a defence to a charge of an offence against the person. If, however, the person dies the defendant has no defence to a charge of murder.
HISTORY OF THE LAW COMMISSION'S VIEW ON DURESS AND MURDER
7.15 In Howe[12] the House of Lords held that duress was not available to anyone charged with murder. Similarly in Gotts[13] the House of Lords held by a majority of three to two that duress is not a defence to attempted murder. One consideration affecting their Lordships' decision in both of these cases was the undesirability of the judiciary undertaking reform on such a controversial issue. The view expressed by the Law Commission in 1977[14] and maintained as a policy in its subsequent reports on this matter through to 1993[15] was that duress should be capable of providing a defence to murder.[16]
The arguments of principle
7.17 The main arguments for and against extending duress to the law of murder were expounded in Howe and rehearsed in our Consultation Paper, Legislating the Criminal Code: Offences Against the Person and General Principles.[17]
Summary of the main arguments against extending the defence to cover murder
7.18 The arguments against extending the defence to cover murder were as follows: [18]
(1) The principle underpinning the rule is "the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another's life."[19] Rather than allow duress to excuse the taking of life, the law should "set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility."[20]
(2) It was said that the present was not an appropriate time for change and that the law must stand firm against a "rising tide of violence and terrorism."[21] Terrorists and their human tools should not be able to rely on a defence of duress[22] which would be easy to raise and might be difficult to disprove.[23]
(3) In Howe it was said the exercise of executive discretion, by decision not to prosecute or by timely release on licence of one serving a life sentence for murder, is available to mitigate the rigours of a blanket denial of the defence.[24]
Summary of arguments in favour of extending duress to cover murder
7.19 The arguments for extending the defence to cover murder were as follows:[25]
(1) With the enactment of a tightly defined defence the question of its application to murder can be considered on its merits, untrammelled by authority.
(2) Innocent life is not effectively protected by a rule of which the actor is unlikely to be aware.
(3) It is for the jury to say whether the threat was one "which [D could not] reasonably be expected to resist".[26] "The law should not demand more than human frailty can sustain."[27]
(4) The defence is not available to a member of a criminal or a terrorist group.[28] Innocent tools of terrorists should be excused if they could not have been expected to act otherwise. They should not be denied the right to raise a true defence because others may claim it falsely.
(5) Reliance on executive discretion is not adequate in principle or in practice. Even if a prosecutor knows of a plea of duress, he may not be able or think it proper to judge its merits; and apart from any other considerations, those responsible for considering a prisoner's release would have to judge his claim without the benefit of a trial on the issue.
7.20 Some of the arguments against extending the defence to murder, in particular the fear that it would provide a tool for the terrorist as stated at paragraph 7.18(2), can be countered by recent developments at common law.[29] These are addressed at paragraphs 7.55-7.59.
The need for consultation
7.21 Although consultees have previously agreed that duress should apply to murder and attempted murder, such agreement was a relatively long time ago and there have been significant changes in the case law since we published our Report, Legislating the Criminal Code: Offences Against the Person and General Principles, in 1993.[30]
7.22 In our previous report,[31] we made recommendations for reforming the partial defence of provocation. We recommended that one "trigger" for the defence should be acting in response to a fear of serious violence. Without more, that would have included acting under duress. In addition, we recommended that the partial defence of provocation should only be available if:
(1) a person of the defendant's age and of ordinary temperament, ie of ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way; and
(2) in deciding whether a person of ordinary temperament in the circumstances of the defendant might have reacted in the same or similar way, the court should take into account the defendant's age and all the circumstances of the defendant other than matters whose only relevance to the defendant's conduct is that they bear simply on his or her general capacity for self-control.
Had our recommendations stopped there, provocation would have encompassed cases of duress, albeit the defence would have had a more objective basis than the full defence of duress that we had recommended in our Report, Legislating the Criminal Code: Offence Against the Person and General Principles.[32]
7.23 However, we were conscious of the fact that there is a body of opinion which believes that duress should not provide any kind of defence to murder or attempted murder. Therefore, we thought it inappropriate to recommend a proposal in relation to provocation, which would have had the effect of allowing duress to become a partial defence to murder[33] (if not to attempted murder) by the back door and without the benefit of consultation. Accordingly, we excluded duress from our recommended reformulation of the provocation defence.
7.24 Additionally there was the further complication that we had previously proposed that duress should provide a complete defence to murder whereas the recommendation in relation to provocation in our Report, Partial Defences to Murder, is for a partial defence.[34] There has not previously been support for the proposition that intentional killing under duress should be classed as manslaughter rather than murder (ie, a partial defence) and so we have in the past adhered to the view that that duress ought to be a full defence.
OUR PROPOSED FRAMEWORK
7.26 In our proposals concerning the overall framework of homicide offences[35] we propose a 'ladder' of homicide offences as follows. Firstly, that there should be an offence of "first degree murder" covering cases where the defendant intended to kill. "First degree murder" would carry a mandatory life sentence.
(1) intended to cause serious harm;
(2) killed as a result of reckless indifference; or
(3) intended to kill but has a partial defence.[36]
"Second degree murder" would carry a maximum sentence of life imprisonment.
7.28 Thirdly, there should be an offence of manslaughter encompassing cases where the defendant killed
(1) through gross negligence;
(2) though an intentional or reckless assault, or through intentional or reckless causing of, or through the attempt to cause, some harm; or
(3) intended to kill but has a partial defence.[37]
7.29 Manslaughter would carry a maximum determinate sentence.
THE POSITION OF DURESS WITHIN THE OVERALL STRUCTURE OF HOMICIDE
Provisional proposal that duress should be a partial defence to a charge of "first degree murder"
7.31 We feel that our revised contextual framework will make the following propositions more attractive. Having considered duress within the context of a comprehensive reform of murder, we are now minded to recommend that duress should reduce "first degree murder" to "second degree murder" and so provide a partial defence.[38] 8 This will have the effect of reducing some of the injustice presently caused by the "grievous bodily harm rule". Duress could also be a full defence to "second degree murder" or alternatively, not provide a defence but mitigate the sentence.
[Question 1]
Duress and "second degree murder"
7.33 According to our proposed framework, a person commits "second degree murder" if he kills when intending to cause serious harm or as a result of reckless indifference.[39] There are two options as to how duress could operate in relation to our proposed category of "second degree murder". Firstly, it is arguable that duress should not be a defence to "second degree murder" on the basis that any mitigation could be taken into account in sentencing since the mandatory life sentence will not apply to "second degree murder". Alternatively, duress could lead to a complete acquittal. The latter option accords with the current law of duress in relation to offences against the person. For example, if a person intentionally or maliciously inflicts grievous bodily harm and is charged with an offence under section 18 or 20 of the Offences Against the Person Act 1861, he can plead duress which, if successful, will result in a complete acquittal. In contrast, if duress is not a defence to "second degree murder", then a defendant who intends to cause serious harm but actually causes the death of a person will be liable for murder. Yet this defendant had the same intention as the person who is acquitted of a section 18 or 20 offence on the basis of duress. It is therefore arguable that duress should be a complete defence to "second degree murder". [Question 2]
DURESS AS A PARTIAL DEFENCE COMPARED WITH THE OTHER PARTIAL DEFENCES
THE BASIS OF A PLEA OF DURESS
7.36 Whereas a detailed analysis of the defence of duress is set out elsewhere,[40] this Part merely summarises the essential requirements of the plea for the purpose of exposition of our proposals as to murder. The test for a successful plea of duress is partly objective.
7.37 The defence is governed by the principles set out by the Court of Appeal in Graham,[41] as approved by the House of Lords in Howe.[42] In Graham the Court of Appeal said that two questions had to be asked:
(1) Was … or may … have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part in the killing?[43]
If the answer to question (1) was "yes", and the answer to question (2) was "no", the defence of duress is made out. The test concerning the defendant's fear that the threat will be carried out is subjective.
Characteristics of the defendant
7.38 Although under Bowen[44] relevant characteristics of the defendant now includes recognised psychiatric syndromes or mental illnesses[45] (but not mere unusual timidity or pliability) we feel that the relevance of characteristics should be pared down in order to achieve consistency with our recommendations on the partial defence of provocation.[46]
7.39 Accordingly this would mean that the defendant's age[47] and all the circumstances of the defendant other than those which bear on his capacity to withstand duress would be relevant for the purpose of the objective test in Graham. Factors such as mental age and recognised psychiatric syndromes will not be relevant. However, although not relevant to the capacity to withstand duress, these factors would be relevant to the subjective aspect of the Graham test of whether the defendant feared that the threat would be carried out.
Reasons for recommending that common law rule as to the defendant's characteristics should be altered
7.41 The test which we now propose is also consistent with the Privy Council decision in A-G for Jersey v Holley.[48] In that case the majority of the Privy Council[49] held that in determining whether the provocation was enough to make a reasonable man do as the defendant did, the gravity of the provocation was to be assessed by reference to his particular characteristics. However, the loss of self-control was to be judged by applying a uniform objective standard of the degree of self-control to be expected of an ordinary person of the defendant's age and sex with ordinary powers of self-control.[50]
The need for the defendant's view of the nature of the threat to be objectively reasonable
The previous view of the Law Commission
7.45 The Law Commission's previous view[51] departed from Graham to the extent that the defence of duress could be brought into play if the defendant honestly believed that a threat of death or serious injury would be carried out if he or she did not comply with the demand. This applied whether or not that belief was based on reasonable grounds.
The plea should be objectively based
7.46 We have reconsidered this question[52] in the light of developments in the recent case law and our review of the law governing defences to murder as a whole. We do not now believe that a defendant should be able to plead duress if the plea is based solely on a wholly unreasonable belief she or he had that a threat had been made. Lord Bingham recently stated in Hasan: "there is no warrant for relaxing the requirement that the belief must be reasonable as well as genuine."[53] There must be a reasonable basis for a belief in death or life-threatening harm. If a defendant pleads duress on the basis of a mistaken belief then such a belief must have been based on reasonable grounds.[54] This does not mean that the defendant's belief cannot be subjectively assessed.
7.47 The reason for this insistence on an element of objectivity is that if a belief is based on prejudice, as opposed to fact,[55] it may well be honestly and firmly held. We do not believe that it should be possible to raise the defences of duress (or provocation), in cases where there is in fact no duress (or no provocation) when the defendant had no basis for mistakenly believing that duress (or provocation) had applied. This is particularly so if the defence is to apply to cases of murder where the deliberate taking of life dictates that the test as to reasonableness should be strict.
Reconciling the need for reasonable grounds with the decision in Martin (David Paul) [56]
7.48 Our view as to the necessity of reasonable grounds for belief in the threat is not consistent with the decision in Martin (David Paul).[57] However, we question the correctness of the decision in that case. In Martin (David Paul) the defendant had been suffering from a schizoid-affective disorder which adversely affected his view of the threat. The Court of Appeal was concerned with the first of the two questions posed in Graham cited in paragraph 7.37. Whilst acknowledging that the passage in Graham suggested that the correct test was objective, they also observed that Lord Lane had emphasised that duress and self-defence were analogous. The test now accepted for self-defence is that "a person may use such force as is reasonable in the circumstances as he honestly believes them to be."[58]
7.49 However, it has now been said in other contexts that the proposition that duress and self-defence are analogous is not a compelling one.[59] This is largely dictated by policy reasons. The policy has governed many of the appellate courts' decisions. It was described by Lord Simon in Lynch: "[y]our lordships should hesitate long lest you may be inscribing a charter for terrorists, gang leaders and kidnappers."[60] As P R Glazebrook has pointed out:
In a case of 'duress of threats' there is still, even if the defendant is excused, someone else … who has indisputably committed the offence and is liable to conviction …. The policy issues … involve not just balancing the interests of the innocent victim of the crime … against the claims to sympathy and understanding of the equally innocent victim of [the] threats, but also weighing the undoubted fact that the recognition of the excuse strengthens the arms of thugs and criminal and terrorist organizations, who would never seek to employ coerced accomplices if it did not make the accomplishment of their criminal objectives that much easier. … A duress of threats defence will, therefore, if allowed at all, have a restricted ambit.[61]
OTHER REQUIREMENTS NECESSARY IN ORDER TO ESTABLISH A PLEA OF DURESS
The conduct of the defendant must be directly related to the threats
7.51 The defence is only available where the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied on. These must be threats to cause death or serious injury to the accused or another.[62] As we have stated at paragraph 7.44, there is now to be an enhanced test of death or life-threatening injury.
The rule in Safi and Ors[63]
7.52 In Safi[64] the Court of Appeal (upholding Graham) held that the trial judge had been wrong to rule that there must be a threat in fact, as opposed to something the defendant believed to be a threat.
Official protection
7.53 Clause 25(2)(b) of the Draft Criminal Law Bill provides that the threat must be, or the defendant must believe that it is, one that will be carried out immediately, or before he (or the person otherwise threatened) can obtain effective official protection.[65] This differs from previous drafts.[66] In 1985 the Code team, influenced by Hudson,[67] were of the view that a person's belief that he cannot be protected was relevant to the overall question of whether the defendant could reasonably be expected to resist the threat, and could not be ignored.[68] Notwithstanding this, however, the Code team felt unable to depart from the previous formulation. Consultees supported the view that it would be unfair to deprive a defendant who in all other respects qualified for the defence just because ineffective official protection was available.[69]
7.54 Since the House of Lords decision in Hasan,[70] where the trial judge's third question to the jury ("Could the defendant have avoided acting as he did without harm coming to his family? If you are sure he could, the defence fails and he is guilty.") had been modelled on the Judicial Studies Board specimen direction and was not therefore open to criticism, this whole question is likely to be construed strictly by the courts.[71] In other words, it now seems that if the threat is not one which will immediately be carried out then the courts will be more ready to infer that evasive action could have been taken by the defendant.
Voluntary exposure to duress
7.55 The House of Lords ruling in Hasan[72] has now resolved another important are a which had previously been unclear by virtue of inconsistent decisions of the Court of Appeal. Prior to the publication of our Report, Legislating the Criminal Code: Offences Against the Person and General Principles, the case law had been clear in stating that a defendant was to be precluded from relying on duress if he had voluntarily exposed himself to any crime.[73]
7.57 In Baker and Ward[74] it was held that if the jury concluded that the defendant could not have neutralised the threats by seeking the assistance of the police, they should be directed to ask themselves as follows: whether it has been proved that he voluntarily put himself in a position where he was likely to be subjected to a compulsion of the kind necessary to commit the offence charged. The contrary was held in Heath.[75] In that case, Kennedy LJ illustrated the more general proposition that it is the awareness of risk of compulsion that matters: "[p]rior awareness of what criminal activity those exercising compulsion may offer as a possible alternative to violence is irrelevant." [76] Heath was followed in Harmer.[77]
The decision in Hasan
The defendant is, ex hypothesi, a person who has voluntarily surrendered his will to the domination of another. Nothing should turn on foresight of the manner in which, in the event, the dominant party chooses to exploit the defendant's subservience. There need not be foresight of coercion to commit crimes, although it is not easy to envisage circumstances in which a party might be coerced to act lawfully.[78]
DURESS AND ATTEMPTED MURDER
7.60 The decision in Gotts[79] made it clear that, as a matter of policy, duress could not be a defence to attempted murder. However, the rationale for this policy is that the difference (if any) between the offence and the attempt is predicated on the existence of the "grievous bodily harm" rule, namely, that a defendant can be deemed to have the intention to commit murder notwithstanding that he intended to do serious (grievous) bodily harm to the victim. A greater intent (intention to kill) is therefore required for the offence of attempted murder. If, as we are minded to suggest, "first degree murder" is confined to cases where there was an intention to kill, then the argument that a greater intent is required for attempted murder than for murder is no longer sustainable.
The requisite test as to characteristics of the defendant in cases of attempted murder
(1) to retain the Bowen test as to characteristics in cases of attempt; or
(2) to say that duress should not be a defence to attempted murder,
are, in our view, both unsatisfactory. The first alternative is unsatisfactory because there would be an unjustifiable inconsistency with the requirements for the plea of provocation. This would cause anomalies at trial where a defendant relied on both defences. As far as the second option is concerned, it is arguably illogical for duress to operate as a defence to murder but not as any sort of defence to the attempt.
THE BURDEN OF PROOF
Our former view
7.66 In our Report, Legislating the Criminal Code: Offences Against the Person and General Principles, and in the draft Criminal Law Bill appended to that Report, we stated that the burden of proof on the issue of whether or not the defendant had voluntarily exposed himself to threats should be reversed.[80] We were also of the view that there should be a reverse legal burden on the defendant to show that he was acting under duress.[81] This is still an option.
7.67 However, the days when it could be claimed that duress is an easy defence to raise and a difficult one to disprove are long gone. Changes in the laws governing defence disclosure mean that it is no longer necessary (and would possibly be disproportionate) to insist that the defendant bears the legal burden of proof either on this issue or on the main issue.[82]
7.69 The restriction which the House of Lords decision in Hasan has now placed upon the availability of the defence has encouraged us in the view that there is no need to place a reverse burden on the defendant. In Hasan, Baroness Hale of Richmond maintained the subjectivist view of the requirements of the defence on which our Report, Legislating the Criminal Code: Offences against the Person and General Principles, is based.[83] However, she stated that as long as the burden of proof in cases of duress is not reversed,[84] then the desire to maintain the objective standards in Graham is understandable.[85]
ADDITIONAL REASONS FOR MAKING THE DEFENCE AVAILABLE IN SOME TYPES OF MURDER CASES
Juveniles
7.72 Concerning juveniles and young persons, much of the potential injustice of the common law denial of duress as a defence to murder will be obviated by the aforementioned proposals. Just as age is a qualification to the objective test in our recommendations on the partial defence of provocation[86] it will apply mutatis mutandis to the proposed objective test for duress. Capacity to withstand duress is increased with maturity and it would be unjust to expect the same level of maturity from a twelve-year-old as from an adult. Bowen[87] also states that youth is a relevant characteristic for the purpose of whether or not the defendant could have been expected to resist the pressure of a threat in cases other than murder. A ten-year-old whose moral character is not fully formed should not be expected in all the circumstances to resist the temptation to kill in order to avert a threat to himself.
Complicity
7.74 In Part 5 we outlined our proposals on secondary liability. These proposals have implications for a defendant who, as a result of duress, agrees to participate in a joint venture which results in a murder.[88]
7.75 The following example illustrates this issue:
D is driving her car when a man (P1) gets in and points a gun at her head. P1 insists that D drive to a place where he tells her he will kill
V. She drives there and speeds off as soon as he gets out of the car. P1 then kills V. Earlier in the day, another person (P2) has threatened P1 with death if he does not kill V.
7.77 However, under our proposed statutory framework for secondary liability, an "indifferent" encourager and assister (D) will not be secondarily liable for P1's offence (of murder) unless D was a party to the joint venture to commit murder.[89] D would only be a party to a joint venture if D "agreed" to participate or shared a "common purpose" with P1.
7.78 If D did not agree nor share a common purpose with P1, then D might in theory be liable for a new inchoate offence of knowingly encouraging or assisting an abstract offence of "first degree murder". Duress is available as a defence in relation to the offence of soliciting for murder and so, as is explained in our paper on complicity,[90] a fortiori it should be available in relation to a charge of knowingly encouraging or assisting "first degree murder".
7.79 However, if D did agree to participate or shared a common purpose with P1, then D will be liable for murder under our proposed statutory framework for secondary liability. As noted in our Part on complicity,[91] this gives rise to the question: should D who agreed to participate in a joint venture with P1 as a result of duress be held to have "agreed" for the purposes of secondary liability?
Note 1 These are firm proposals because they are proposals in the as yet unpublished Codification project. [Back] Note 2 Unless otherwise stated, the term duress in this Part refers to both duress by threats and duress of circumstances. [Back] Note 3 Howe [1987] AC 417; Gotts [1992] 2 AC 412. [Back] Note 4 See Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218, paras 31.1-31.8. [Back] Note 5 Hasan [2005] UKHL 22, [2005] 2 WLR 709 [21], per Lord Bingham of Cornhill. [Back] Note 6 Criminal Justice Act 1988, s 134(4) and (5). [Back] Note 7 Graham [1982] 1 WLR 294, 301, per Lord Lane CJ. [Back] Note 8 Hasan [2005] UKHL 22, [2005] 2 WLR 709, [Back] Note 9 Willer (1986) 83 Cr App R 225; Conway [1989] QB 290. [Back] Note 10 Safi and Ors [2003] EWCA Crim 1809, [2004] 1 Cr App R 14. [Back] Note 11 Abdul-Hussain and Ors [1999] Crim LR 570. [Back] Note 12 Howe [1987] AC 417. [Back] Note 13 Gotts [1992] 2 AC 412. [Back] Note 14 Criminal Law: Report on Defences of General Application (1977) Law Com No 83, paras 2.39-2.45. [Back] Note 15 Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218, paras 30.1-31.8. [Back] Note 16 The exception was cl 42(2) of the Draft Criminal Code Bill 1989, which excluded murder and attempted murder but only on the basis that, being a document of re-statement, it recognised that such a change in the law would have to be effected by legislation: Criminal Law: A Criminal Code for England and Wales (1989) Law Com 177, para 12.13. [Back] Note 17 (1992) Consultation Paper No 122, paras 18.15-18.16. [Back] Note 18 Ibid, para 18.15. [Back] Note 19 Howe [1987] AC 417, 439, per Lord Griffiths. [Back] Note 20 Ibid, 430, per Lord Hailsham of St Marylebone LC. [Back] Note 21 Ibid, 443-444, per Lord Griffiths. [Back] Note 22 Ibid, 434, per Lord Hailsham of St Marylebone LC. [Back] Note 23 Ibid, 438, per Lord Bridge of Harwich, and at 444, per Lord Griffiths. [Back] Note 24 Ibid, 433, per Lord Hailsham of St Marylebone LC, and 445-446, per Lord Griffiths. [Back] Note 25 Legislating the Criminal Code: Offences Against the Person (1992) Consultation Paper No 122, para 18.16. [Back] Note 26 Draft Criminal Law Bill, cl 26(4), appended to Legislating the Criminal Code: Offences Against the Person (1992) Consultation Paper No 122. [Back] Note 27 Howe [1987] AC 417, 442, per Lord Griffiths. [Back] Note 28 Draft Criminal Law Bill, cl 26(4), appended to Legislating the Criminal Code: Offences Against the Person (1992) Consultation Paper No 122. [Back] Note 29 Hasan [2005] UKHL 22, [2005] 2 WLR 709. [Back] Note 30 (1993) Law Com 218, paras 31.1-31.8. [Back] Note 31 Partial Defences to Murder (2004) Law Com No 290. [Back] Note 32 (1993) Law Com 218. [Back] Note 33 Ibid, paras 3.161-3.162. [Back] Note 34 (2004) Law Com 290, para 3.168. This is also a view which we have considered previously and rejected: Criminal Law: Report on Defences of General Application (1977) Law Com No 83, para 2.43. In that report we stated:
… where the duress is so compelling that the defendant could not reasonably have been expected to resist it, perhaps being a threat not to the defendant himself but to an innocent hostage dear to him, it would … be unjust that the defendant should suffer the stigma of a conviction even for manslaughter. We do not think that any social purpose is served by requiring the law to prescribe such standards of determination and heroism. [Back] Note 36 Alternatively, partial defences could reduce “first degree murder” and “second degree murder” to manslaughter. [Back] Note 37 Alternatively, partial defences could reduce “first degree murder” to “second degree murder”. [Back] Note 38 In Victoria, Australia, Parliament recently passed an Act that provides for duress to be a complete defence to murder: Crimes (Homicide) Act 2005, s 6. [Back] Note 39 When discussing duress as a defence to “second degree murder” we are only referring to cases in which the defendant intended to cause serious harm or acted out of reckless indifference. We are not referring to a case in which a defendant is charged with “first degree murder” and successfully pleads another partial defence such as provocation, so that the offence is reduced to “second degree murder”. Defendants can’t ‘double-dip’ by pleading one defence to “first degree murder” and then pleading duress to “second degree murder”. [Back] Note 40 As yet unpublished Codification project. [Back] Note 41 Graham [1982] 1 WLR 294. [Back] Note 42 Howe [1987] AC 417. [Back] Note 43 Graham [1982] 1 WLR 294, 301, per Lord Lane CJ. [Back] Note 44 Bowen [1997] 1 WLR 372, 380. The Court of Appeal also held that: … the mere fact that the accused is more pliable, vulnerable, timid or susceptible to threats than a normal person is not a characteristic with which it is legitimate to invest the reasonable/ordinary person for the purpose of considering the objective test. [Back] Note 45 Emery (1993) 14 Cr App R (S) 394. [Back] Note 46 Partial Defences to Murder (2004) Law Com No 290, Part 3. [Back] Note 47 Age being the significant exception. [Back] Note 48 [2005] UKPC 23, [2005] 3 WLR 29. [Back] Note 49 The majority was 6-3. Lords Bingham of Cornhill, Hoffmann and Carswell dissented. [Back] Note 50 Accordingly the majority view of the House of Lords in (Smith) Morgan [2001] 1 AC 146 (that in cases of provocation the jury should ask themselves whether the accused had applied the standard of self-control to be expected of someone in his situation) was erroneous. It represented a departure from the law as declared in Homicide Act 1957, s 3. [Back] Note 51 Draft Criminal Law Bill, cl 25, appended to Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218. [Back] Note 52 As yet unpublished Codification project. [Back] Note 53 Hasan [2005] UKHL 22, [2005] 2 WLR 709 [23]. [Back] Note 54 The as yet unpublished Codification project proposes that clause 25(2) of the Draft Criminal Law Bill appended to Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218, be revised as follows:
A person does an act under duress by threats if he does it because he knows or
has grounds for believing and does believe … (our italics). [Back] Note 55 For example, the prejudiced defendant who believes that someone is posing a threat just because they are black and according to him “black people are more dangerous and ruthless than white people”. [Back] Note 56 [2000] 2 Cr App R 42. [Back] Note 58 Beckford [1988] AC130 (PC) 145, per Lord Griffiths. [Back] Note 59 In Hasan [2005] UKHL 22, [2005] 2 WLR 709 [38], Lord Bingham of Cornhill stated that
analogies between duress and self-defence were inappropriate for policy reasons: I am conscious that application of an objective reasonableness test to other ingredients of duress has attracted criticism: see, for example, Elliott, “Necessity, Duress and Self-Defence” [1989] Crim LR 611, 614-615, and the commentary by Professor Ashworth on R v Safi [2003] Crim LR 721, 723 …. But since there is a choice to be made, policy in my view points towards an objective test of what the defendant, placed as he was and knowing what he did, ought reasonably to have foreseen. [Back] Note 60 DPP for Northern Ireland v Lynch [1975] AC 653, 688. [Back] Note 61 P R Glazebrook, “Structuring the Criminal Code: Functional Approaches to Complicity, Incomplete offences and General Defences” in A P Simester and A T H Smith (eds), Harm and Culpability (1996) 209. [Back] Note 62 Draft Criminal Law Bill, cl 25(2)(a), appended to Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218. [Back] Note 63 Safi and Ors [2003] EWCA Crim 1809, [2004] 1 Cr App R 14. [Back] Note 64 The Court of Appeal in Safi and Ors [2003] EWCA Crim 1809, [2004] 1 Cr App R 14 [9], considered the following question:
Is it sufficient, once a defence of duress is raised, for the Crown to prove in relation to the first element of that defence, that there was no threat or circumstance giving rise to duress in fact or must the Crown prove that the defendants had no belief in the existence of such threat or circumstances. [Back] Note 65 Appended to Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com 218. [Back] Note 66 Cl 26(3) of the Bill appended to Legislating the Criminal Code: Offences Against the Person and General Principles (1992) Consultation Paper No 122 provided that it was immaterial that the defendant believed any available official protection would or might be ineffective. [Back] Note 67 Hudson [1971] 2 QB 202. [Back] Note 68 Criminal Law: Codification of the Criminal Law – A Report to the Law Commission (1985) Law Com No 143, para 13.18. [Back] Note 69 Legislating the Criminal Code: Offences Against the Person and General Principles (1993) Law Com No 218, para 29.6. [Back] Note 70 Hasan [2005] UKHL 22, [2005] 2 WLR 709. [Back] Note 71 It should however be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged. [Back] Note 72 Hasan [2005] UKHL 22, [2005] 2 WLR 709. [Back] Note 73 Sharp [1987] QB 853; Shepherd (1988) 86 Cr App R 47; Fitzpatrick [1977] NI 20. [Back] Note 74 Baker and Ward [1999] 2 Cr App R 335. [Back] Note 75 Heath [2000] Crim LR 109 (CA). [Back] Note 76 Ibid quoted in Hasan [2005] UKHL 22, [2005] 2 WLR 709 [36], per Lord Bingham of Cornhill. [Back] Note 77 Harmer [2001] EWCA Crim 2930, [2002] Crim LR 401 [Back] Note 78 Hasan [2005] UKHL 22, [2005] 2 WLR 709 [37], per Lord Bingham of Cornhill. [Back] Note 79 [1992] 2 AC 412. [Back] Note 80 (1993) Law Com 218, paras 29.15-29.16, and Draft Criminal Law Bill, cl 25(4). [Back] Note 81 Ibid, paras 33.1-33.16, and Draft Criminal Law Bill, cl 25(2). [Back] Note 82 See, Criminal Procedure and Investigations Act 1996, s 5, as amended by the Criminal Justice Act 2003, s 33(1) (not yet in force); Criminal Justice and Public Order Act 1994, s 34; Criminal Procedure Rules (SI 384/2005) (in force since April 2005). [Back] Note 83 Hasan [2005] UKHL 22, [2005] 2 WLR 709 [73], per Baroness Hale of Richmond. [Back] Note 84 As we explain at paras 7.67-7.69, we are no longer of the view that the burden of proof ought to be reversed in cases of duress. [Back] Note 85 Hasan [2005] UKHL 22, [2005] 2 WLR 709 [74]. However, Baroness Hale also stated: But it seems to me that the best counter to Lord Lane's concerns is the Fitzpatrick doctrine which is in issue in this case. Logically, if it applies, it comes before all the other questions raised by the defence: irrespective of whether there was a threat which he could not reasonably be expected to resist, had the defendant so exposed himself to the risk of such threats that he cannot now rely on them as an excuse? If even on his own story he had done so, then the defence can be withdrawn from the jury without more ado; if that issue has to be left to the jury, but they resolve it against him, there is no need for them to consider the other questions. [Back] Note 86 Partial Defences to Murder (2004) Law Com No 290, para 3.110. [Back] Note 87 Bowen [1997] 1 WLR 372. [Back] Note 88 See Part 5, paras 5.59-5.78. [Back]
