The House considered the availability of duress as a defence on a charge of aiding and abetting murder. Referring to the basic elements of criminal liability, mens rea and actus reus: ‘Both terms have, however, justified themselves by their usefulness; and I shall myself employ them in their traditional senses – namely, actus reus to mean such conduct as constitutes a crime if the mental element involved in the definition of the crime is also present (or, more shortly, conduct prohibited by law); and mens rea to mean such mental element, over and above volition, as is involved in the definition of the crime.’
As to whether defences of accident or mistake or self-defence could be raised under s.4A(2), although they almost invariably involve some consideration of the mental state of the defendant and on the s.4A(2) determination the defendant’s state of mind was not to be considered.
Lord Hutton said: ‘How then is this difficulty to be resolved? I would hold that it should be resolved in this way. If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the ‘act’ unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence’ and
‘The defence of provocation to a charge of murder is only relevant when the jury are satisfied that the defendant had the requisite mens rea for murder, and I wish to reserve my opinion on the question of whether, on a determination under s.4A(2), it would be open to the defence to call witnesses to raise the issue of provocation’
Lord Morris of Borth-y-Gest said: ‘it is proper that any rational system of law should take fully into account the standards of honest and reasonable men. By those standards it is fair that actions and reactions may be tested.’ Lord Simon of Glaisdale ‘A sane system of criminal justice does not permit a subject to set up a countervailing system of sanctions or by terrorism to confer criminal immunity on his gang.’ and
‘If in the present case the jury were satisfied that the car was driven towards the garage in pursuance of a murderous plan and that the appellant knew that that was the plan and intentionally drove the car in execution of that plan, he could be held to have aided an abetted even though he regretted the plan or indeed was horrified by it. However great his reluctance, he would have intended to aid and abet.’
Judges:
Lord Simon of Glaisdale, Lord Hutton, Lord Morris of Borth-y-Gest
Citations:
[1975] AC 653, [1975] 1 All ER 913, [1975] UKHL 5
Links:
Statutes:
Criminal Procedure (Insanity) Act 1964 4(A2)
Jurisdiction:
Northern Ireland
Cited by:
Cited – The Coca-Cola Company and Another v Cengiz Aytacli and others ChD 30-Jan-2003
The claimant having succeeded in an action against the defendants, now sought an order for their committal for contempt, accusing them of having given false evidence, and of having failed to comply with court orders made. The defendant asserted a . .
Overruled – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Al-Ameri v Royal Borough of Kensington and Chelsea; Osmani v London Borough of Harrow (Conjoined Appeals) HL 5-Feb-2004
The applicants had been asylum seekers, and obliged to live in Glasgow. Upon losing their asylum claim, but being given exceptional leave to remain, they sought to be rehoused by the appellants. The appellants had said that the applicants having . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Hasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .
Cited – Regina v Bryce CACD 18-May-2004
The defendant said that his involvement in the murder of which he had been convicted had been secondary only. He was alleged to have transported the killer and the gun which he used to commit the murder to a caravan near the victim’s home so that . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 07 June 2022; Ref: scu.179892