R. v Howe (Michael Anthony), [1987] A.C. 417 (1987)
For educational use only
*417 Regina Respondent v Howe Appellant
Regina Respondent v Bannister Appellant
Regina Respondent v Burke Appellant
Regina Respondent v Clarkson Appellant
Positive/Neutral Judicial Consideration
Court
House of Lords
Judgment Date
19 February 1987
Report Citation
[1987] 2 W.L.R. 568
[1987] A.C. 417
House of Lords
Lord Hailsham of Marylebone L.C. , Lord Bridge of Harwich , Lord
Brandon of Oakbrook , Lord Griffiths and Lord Mackay of Clashfern
1987
Feb. 19; 1986 Nov. 17, 18, 19, 20;
[Conjoined Appeals]
Crime—Homicide—Duress as defence—Murder—Principals in first and second degree—Defence of duress not available
to either—Whether conviction for murder of person exercising duress maintainable if person under duress convicted of
manslaughter only—Whether test of reasonable man applicable in duress
Crime—Homicide—Procuring or inciting murder—Person procured alleging duress and accidental killing—Both person
procured and procuror charged with murder—Whether, if person procured only guilty of manslaughter, procuror still guilty
of murder
In the first appeal, the two appellants with an intended victim were driven by M. to an isolated area where the appellants and
M. assaulted the victim and then M. killed him. On a second similar occasion the appellants jointly strangled a victim. On
a third occasion, the intended victim escaped. The appellants were tried on indictment on two counts of murder and one of
conspiracy to murder. Their defence was that they feared for their own lives if they did not do as M. directed. The judge left
the issue of duress to the jury in respect of the first murder committed by M. and the conspiracy to murder but not on the
count of murder where the victim was strangled by the appellants. He directed the jury that the test of duress was whether
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,R. v Howe (Michael Anthony), [1987] A.C. 417 (1987)
a sober person of reasonable firmness sharing the appellants' characteristics would have responded to the threats by taking
part in the killing. The appellants were convicted on the three counts.
*418
In the second appeal, the appellants Burke and Clarkson were tried on a charge of murder of a man killed by Burke. Burke's
defence was that he had agreed to shoot the victim because of fear that Clarkson would kill him if he did not do so but that the
gun went off accidentally. The judge directed the jury that Burke, as the actual killer, could not rely on duress as a defence
to the charge of murder but he left the issue of duress to the jury on the issue whether Burke's act was unintentional so that
the offence committed amounted to manslaughter. He further directed the jury that if they found that Burke was guilty of
manslaughter, Clarkson could at most be convicted of that offence. Both appellants were convicted of murder.
The four appellants appealed against conviction. Their appeals were heard together and were dismissed by the Court of
Appeal.
On appeal by the appellants:-
Held, dismissing the appeals, that it was not a defence to a charge of murder that the accused had acted under duress in order
to protect his own life or that of his family; that, accordingly, the defence was not available to the person who actually killed
the victim and it was also not available to those who had participated in the murder as principals in the second degree; and
that, therefore, the appellants had been rightly convicted of murder (post, pp. 436A-B, 437E - 438B,C, 445D-F, 453D-G,
456B - 457A).
Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273 and Abbott v. The Queen [1977] A.C. 755 , P.C. applied.
Director of Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653 , H.L.(N.I.) overruled.
Held, further, that in circumstances where a defendant had procured or incited another to commit murder but that person was
convicted of manslaughter, the defendant could be convicted of the murder of the victim; and that, therefore, the judge had
erred in law in directing the jury that if they found Burke guilty of manslaughter, they could not convict Clarkson of murder
(post, pp. 426A-C, 436A-B, 438B-C, 446A-B, 458C-D).
Reg. v. Richards [1974] Q.B. 776 , C.A. overruled.
Per curiam. In offences where the defence of duress is available, the test to be applied is whether the threat was of such
gravity that it might well have caused a reasonable man placed in the same situation to act in the same way as the defendant
had acted, and whether a sober person of reasonable firmness sharing the defendant's characteristics would have responded
to the threat by taking part in the killing (post, pp. 426C-E, 436A-B, 438B-C, 446A-B, 458D-F, 459B-D).
Reg. v. Graham (Paul) [1982] 1 W.L.R. 294 , C.A. approved.
Decision of the Court of Appeal (Criminal Division) [1986] Q.B. 626; [1986] 2 W.L.R. 294; [1986] 1 All E.R. 833 affirmed
on different grounds.
The following cases are referred to in their Lordships' opinions:
Abbott v. The Queen [1977] A.C. 755; [1976] 3 W.L.R. 462; [1976] 3 All E.R. 140, P.C.
Anderton v. Ryan [1985] A.C. 560; [1985] 2 W.L.R. 968; [1985] 2 All E.R. 355, H.L.(E.)
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Director of Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653; [1975] 2 W.L.R. 641; [1975] 1 All E.R.
913, H.L.(N.I.) *419
Myers v. Director of Public Prosecutions [1965] A.C. 1001; [1964] 3 W.L.R. 145; [1964] 2 All E.R. 881, H.L.(E.)
Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234; [1966] 3 All E.R. 77, H.L.(E.)
Reg. v. Bourne (1952) 36 Cr.App.R. 125, C.C.A.
Reg. v. Brown and Morley [1968] S.A.S.R. 467
Reg. v. Cogan [1976] Q.B. 217; [1975] 3 W.L.R. 316; [1975] 2 All E.R. 1059, C.A.
Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273
Reg. v. Fitzpatrick [1977] N.I. 20
Reg. v. Graham (Paul) [1982] 1 W.L.R. 294; [1982] 1 All E.R. 801, C.A.
Reg. v. Hindawi (unreported), 24 October 1986, Central Criminal Court.
Reg. v. Hudson [1971] 2 Q.B. 202; [1971] 2 W.L.R. 1047; [1971] 2 All E.R. 244, C.A.
Reg. v. Hyam [1975] A.C. 55; [1974] 2 W.L.R. 607; [1974] 2 All E.R. 41, H.L.(E.)
Reg. v. Kray (Ronald) (1969) 53 Cr.App.R. 569, C.A.
Reg. v. Richards [1974] Q.B. 776; [1973] 3 W.L.R. 888; [1973] 3 All E.R. 1088; 58 Cr.App.R. 60, C.A.
Reg. v. Shivpuri [1987] A.C. 1; [1986] 2 W.L.R. 988; [1986] 2 All E.R. 334, H.L.(E.)
Reg. v. Tyler and Price (1838) 8 C. &; P. 616
S. v. Goliath, 1972 (3) S.A. 1 , 465
Woolmington v. Director of Public Prosecutions [1935] A.C. 462, H.L.(E.)
The following additional cases were cited in argument:
Reg. v. Darrington and McGauley [1980] V.R. 353
Reg. v. Gillard; Reg. v. King (unreported), 28 July 1983, Sheldon J. at Exeter
Reg. v. Harding [1976] V.R. 129
Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973] A.C. 435; [1972] 3 W.L.R. 143; [1972] 2 All E.R. 898,
H.L.(E.)
Reg. v. McConnell [1977] 1 N.S.W.L.R. 714
APPEALS from the Court of Appeal.
These were appeals, by leave of the Court of Appeal (Criminal Division) (Lord Lane C.J., Russell and Taylor JJ.) [1986] Q.B.
626 from their decision upholding the convictions of the appellants, Michael Anthony Howe and John Derek Bannister, in the
Crown Court at Manchester before Jupp J. and a jury on 28 January 1985 on counts of murder and conspiring with others to
murder, contrary to section 1 of the Criminal Law Act 1977 ; and upholding the convictions of the appellants, Cornelius James
Burke and William George Clarkson, at the Central Criminal Court before the Common Serjeant of London (Judge Tudor Price)
and a jury on 16 October 1984 on a count of murder.
The facts are set out in their Lordships' opinions.
Michael Self Q.C., Roy Warne and Peter Crichton-Gold for the appellants Howe, Bannister and Burke. On the question whether
duress is available as a defence to a person charged with murder as a principal in the first degree (the actual killer), it is clear that
the doctrine of duress has moved since the days of Blackstone. The principle established in Director of Public Prosecutions
for Northern Ireland v. Lynch [1975] A.C. 653 is clear and its logic should extend to the present appeal. In the Lynch case
the House held that the defence of duress is available to a person charged with murder as an aider and abettor. The defence
should be available to a defendant charged with murder as the actual killer for the following reasons. (i) It is illogicial to allow
the defence to an aider and abettor to murder but to deny it to a principal in the first degree. No acceptable basis of distinction
exists. A secondary party may be more culpable than the actual killer. (ii) If the defence is denied to the actual killer yet allowed
to the aider and abettor it will always be necessary, in relation to any particular defendant charged with murder to ascertain his
degree of participation in the killing. To do so may import absurdity and inconsistency into the law (see, e.g., Reg. v. Graham
(Paul) [1982] 1 W.L.R. 294 ). (iii) To deny the defence to the actual killer does not make for sounder law or better ethics. A
defendant charged with attempted murder, or under section 18 of the Offences against the Person Act 1861 , may undoubtedly
rely upon the defence of duress and may be acquitted. If the victim subsequently dies, the defendant may be charged with
murder and convicted, without the benefit of the defence. (iv) to withhold the defence from the actual killer may create grave
injustice, as where an aider and abettor who relies successfully upon the defence is totally acquitted, whilst the actual killer
who has acted under duress is sentenced to imprisonment for life. Conversely, to allow the defence of duress would ensure that
the evidence is fully brought out before the jury. (v) Current opinion is in favour of the general application of the defence, as
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, R. v Howe (Michael Anthony), [1987] A.C. 417 (1987)
recommended by the Law Commission Report, Criminal Law, Report on Defences of General Application (Law Com. No. 83),
dated 27 July 1977, which was not available when the Lynch case and Abbott v. The Queen [1977] A.C. 755 (the dissenting
speeches of which are relied on) were considered. There is no direct English judicial authority against the availability of the
defence of duress to the actual killer. Current commentaries on the law tend to support the extension of duress as a defence for
an actual killer. Further, the defence of duress was put before the jury in Reg. v. Gillard; Reg. v. King (unreported), 28 July
1983, in relation to an actual killer.
Although Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273 shows that necessity is not a defence, the law of necessity is by
no means established as such, unlike duress, which is firmly established as a defence. [Reference was also made to Reg. v.
Fitzpatrick [1977] N.I. 20 , where the defence was held not to apply to crimes committed under duress applied by an illegal
organisation which the defendant had voluntarily joined]. The opening of the door for the defence began in Reg. v. Kray (Ronald)
(1969) 53 Cr.App.R. 569 ; and two years later Reg. v. Hudson [1971] 2 Q.B. 202 held that duress applied to all cases except
possibly treason or murder by the principal. The door was swept wide open by the Lynch case, but shut a year later by the
persuasive authority of the majority of the Privy Council in the Abbott case. [Reference was also made to Reg. v. Harding [1976]
V.R. 129 ; Reg. v. McConnell [1977] 1 N.S.W.L.R. 714 and Reg. v. Darrington and McGauley [1980] V.R. 353] . To not extend
the defence to the actual *421 killer would make for injustice in that the aider and abettor is able to rely on it. (Their Lordships
cannot allow the defence of duress to reduce murder to manslaughter, as in the defence of provocation, as in all other offences
the defence of duress is a complete defence, and there would therefore be introduced a unique element into the criminal law.)
On the question whether the defence of duress failed if the prosecution proved that a person of reasonable firmness sharing the
characteristics of the defendant would not have given way to the threats as did the defendant, Reg. v. Graham (Paul) [1982] 1
W.L.R. 294 is wrongly decided on this point and should be overruled. The test should be purely subjective and the defendant
should be judged on the basis of what he honestly and actually believed and feared. The tests of reasonableness averred to in
Reg. v. Graham (Paul) are wrong because (a) it is contrary to principle to require the defendant's fear to be a reasonable one,
for to do so punishes the weak who have succumbed to threats; and (b) likewise to require that the defendant's action be judged
against the objective test of a sober person of 'reasonable firmness' also punishes the weak. The position is not analogous to
provocation. The question should not be "did he reasonably fear ..." but "did he honestly or genuinely fear ..."
Alan Suckling Q.C. and Diana Ellis for the appellant Clarkson. One who incites or procures another to kill or to be a party to
a killing cannot be convicted of murder if that other is acquitted by reason of duress. At common law a principal in the second
degree to an offence could be guilty of a graver offence than that committed by the principal in the first degree. However, a
defendant who was not present either actively or constructively could be guilty of no graver offence than that committed by
the principal in the first degree. Thus a person who incited another to kill but was not present at the killing might be guilty of
incitement to murder but could not be guilty of murder if for some reason the actual killer was only guilty of manslaughter. The
common law rule was not affected by the Accessories and Abettors Act 1861 which only altered the procedure for prosecuting
accessories and not the substantive law defining their position and liability. Subject to two exceptions the common law rule
remains the law: see Reg. v. Richards [1974] Q.B. 776 ; Reg. v. Bourne (1952) 36 Cr.App.R. 125 and Reg. v. Cogan [1976]
Q.B. 217 . The two exceptions are where there is express statutory provision to the contrary: see section 2(4) of the Homicide
Act 1957 , and where the procurer acts through an innocent agent so that the acts of the agent are deemed to be the acts of the
procurer. An innocent agent is one who does not know that what he is doing is wrong. One who kills as a result of duress is not
an innocent agent - he knows what he is doing and intends to do it, having made a conscious choice. Since neither exception
applies in the present case the common law rule prevails. As an accessory before the fact, Clarkson cannot be guilty of murder,
as against incitement to murder, if Burke is to be acquitted by reason of duress.
Benet Hytner Q.C. and Tim Langdale for the Crown were invited to address the House on the first certified question only.
Duress can never effect a defence to a charge of murder. The Lynch case [1975] A.C. 653 *422 was wrongly decided, having
been based on an invalid distinction between principles in the first degree and principles in the second degree. It has no basis in
policy, morality, principle or authority; and the logic of the majority can be seen to be flawed. Prior to the Lynch case writers on
criminal law and judicial authority did not recognise duress as a defence to a charge of murder: see the authorities cited in the
dissenting judgment of Lord Simon of Glaisdale; reliance is placed on his speech at [1975] A.C. 635 , 695D-H. Further, there is
no distinction that can be drawn in principle between necessity and duress as defences to a charge of murder. The Dudley and
Stephens case, 14 Q.B.D. 273 , was correctly decided. There are no grounds for distinguishing between principals in the first
or second degrees. The contribution of the secondary party to the death may be no less significant than that of the principal.
Duress should not afford a defence to a charge of murder whatever the degree of participation. If the Lynch case is not wrongly
decided, then it is to be regarded as an authority solely on its particular facts or, failing that, as relating solely to principals in the
second degree. If duress is to afford a defence to a charge of murder, whatever the degree or nature of participation, its effect
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