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Using the judgement of R v Howe 1987, critically consider the theoretical and pragmatic arguments in favour & against extending the defence of duress to murder?$9.02
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Using the judgement of R v Howe 1987, critically consider the theoretical and pragmatic arguments in favour & against extending the defence of duress to murder?
Using the judgement of R v Howe 1987, critically consider the theoretical and pragmatic
arguments in favour & against extending the defence of duress to murder?
Duress and necessity are founded on the precept that one should not incur criminal liability
for crimes committed due to factors beyond his or her control.1 For example: an individual
threatening that an individual must choose to commit an offence or the perpetrator will kill
them. Within the common law, it is recognised that an act that would usually constitute
murder should be reduced to manslaughter in instances where the individual killed as a
result of threats or circumstances that do not amount to lawful excuse. 2 Despite this slight
recognition that those who kill under duress are less blameworthy than those who kill in
absence of such circumstance, the law has consistently declined to allow the defence of
duress for murder on both moral and pragmatic basis.3
This question cannot be answered without the examination of relevant case law. Most
notably, R v Howe overruled previous allowances in DPP v Northern Ireland, disallowing
duress as a defence for any degree of murder offence4, but why did this change occur?
In writing for the majority in R v Howe, Lord Hailsham explained ordinary firmness would be
the requirement that constitutes a core justification for the defence of duress at common
law.5 Obiter dicta from Lord Hailsham listed three core reasons against extending duress as
a defence for murder, the first branch of reasoning focuses on the ‘lesser of two evils.’ A
theoretical concern that a reasonable person of average courage would never conclude the
taking an innocent life to be the lesser of two evils. Such concern is rooted in the necessity
of sticking to the moral rulebook with no exceptions. Elements of kantianist theory echo
throughout this ruling. Namely a categorical imperative focused on moral intent which must
be universal.6 For an action to be permissible it must be possible to apply it to all people
without contradiction occurring.7
This rigid moral compass places intention at the height of importance when analysing
criminal liability. In other words, intending to kill without legal excuse is always wrong.
However, sticking to a moral compass so strictly may not produce the best results in reality.
It also may not actually be the most morally pure action. If focus is shifted to actions
producing the best results, rather than actions with the purest intent, how much credence
can be given to Hailsham’s pronouncement that duress can never be a defence to murder. If
you have the ability to stop a killer and you do not, are you morally pure because you did
not kill? Or are you morally dirty because you refused to do what needed to be done? Can
observing and allowing evil to take place be just as blameworthy as committing the evil
yourself?
1
Crown Prosecution Service, ‘Defences - Duress and Necessity’ (Legal Guidance).
2
John Child and David Ormerod, Essentials of Criminal Law (Oxford University Press, 2017)
3
R v Howe (1987) 2 WLR 568
4
Ibid
5
Ibid
6
Kant, Immanuel, Grounding for the Metaphysics of Morals (Hackett Publishing Company Inc, 1993)
7
Ibid
, This stance contains strong elements of act utilitarianism, which focuses on results or
consequences; concluding a good consequence must equal a good action. 8 With the
principle of utility at its core, utilitarianism tells us we must act in a way that produces the
best outcome for the greatest numbers.
Act utilitarianism frequently dominates medical decisions where human life hangs in the
balance of medical staff. One example being the separation of the Manchester conjoined
twins.9 Despite the parents of the twins being devoted Catholics, who wanted no
interference from medical professionals; stating whatever happened would be gods’
intentions, medical staff still went ahead with an operation to separate the twins. They took
this action with the knowledge that if they did nothing, both twins would die, however if
they separated Mary from Jodie, she would survive but they would kill Mary instantly.
Human life is deemed as the most important factor within our criminal justice system. This
importance is also why Hailsham took such a distaste to ever setting a precedent that
murder could ever be a desirable action. However, in this case, murder to save a life
produced a better result than allowing two babies to die. In other words, the medical staff in
question would justify their actions, as they achieved the most desirable result in terms of
saving maximum human lives given the terrible situation the babies were in.
There are elements of moral luck at play within this case. It is not the doctors fault the
babies were in this condition, and they merely did everything they could to at least save one
life. If this was a standard birth procedure, but one of the babies were still born, the doctors
would not have been punished, despite both births producing the same result (of one baby
surviving.) When you place intent above outcome, you inevitably end up punishing people
who are using their power to rectify a horrible situation that they were in through no fault
of their own, rather than a viscous or reckless will to take a life which is at the heart of
establishing liability and proving the mens rea for a murder. Conflating these two actions is
illogical and immoral.
If we accept the doctor’s actions as permissible, this raises the question, why could a
terrified mother not take the same action if a kidnapper tells her to kill one of her children
or he will kill both of them. In both cases, the individual kills to achieve the best results and
save maximum lives. However, one is punishable and the other was not.
So, is it desirable to drop Kantianism and allow utilitarianist thinking into our Criminal Justice
System? Adopting an act utilitarianist approach may produce better results, however it is
not always applicable to real life situations. Numerous thought experiments were created to
assess how practical utilitarianist thinking is in pressurising situations.
The trolley problem is a specific ethical thought experiment among several that highlights
the difference between deontological and consequentialist ethical systems. 10 The central
8
John Stuart Mill, Utilitarianism, (Hackett Publishing Company Inc, 2002) 2.
9
JJ Paris and A C Elias-Jones, ‘Do we murder Mary to save Jodie?” An ethical analysis of the separation of the
Manchester conjoined twins’ (Postgraduate Medical Journal, 2001) 3.
10
Hazel Si Min Lim and Araz Taeihagh, ‘Algorithmic Decision-Making in AVs: Understanding Ethical and
Technical Concerns for Smart Cities’ (Multidisciplinary Digital Publishing Institute, 2019)
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