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 whether the threat was so serious as would cause a reasonable man in the same situation to behave in the same way.
Lord MacKay of Clashfern said: ‘It seems to me plain that the reason that it was for so long stated by writers of authority that the defence of duress was not available in a charge of murder was because of the supreme importance that the law afforded to the protection of human life and that it seemed repugnant that the law should recognise in any individual in any circumstances, however extreme, the right to choose that one innocent person should be killed rather than another. In my opinion, that is the question which we still must face. Is it right that the law should confer this right in any circumstances, however extreme?’
Lord Hailsham said: ‘This brings me back to the question of principle. I begin by affirming that, while there can never be a direct correspondence between law and morality, an attempt to divorce the two entirely is and has always proved to be, doomed to failure, and in the present case, the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility . . Other considerations necessarily arise where the choice is between the threat of death or a fortiori of serious injury and deliberately taking an innocent life. In such a case a reasonable man might reflect that one innocent human life is at least as valuable as his own or that of his loved one. In such a case a man cannot claim he is choosing the lesser of two evils. Instead he is embracing the cognate but morally disreputable principle that the end justifies the means . . It may well be thought that the loss of a clear right to a defence justifying or excusing the deliberate taking of an innocent life in order to emphasise to all the sanctity of a human life is not an excessive price to pay in the light of these mechanisms’.
He continued: ‘There is of course an obvious distinction between duress and necessity as potential defences: duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is a distinction without a relevant difference, since on this view of duress it is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other.’
Lord Hailsham of St Marylebone LC, Lord MacKay of Clashfern
[1987] AC 417, [1987] 2 WLR 568, [1986] UKHL 4, (1987) 85 Cr App R 32
Bailii
England and Wales
Citing:
Approved – Regina v Graham (Paul) CACD 18-Dec-1981
The defence of duress requires establishment of a reasonable belief. In judging the accused’s response the test is: ‘have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, . .
Applied – Regina v Dudley and Stephens QBD 9-Dec-1884
dudley_stephens1884
Three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship’s boy had been . .
Overruled – Director of Public Prosecutions for Northern Ireland v Lynch HL 1975
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 . .
Applied – Abbott v The Queen PC 20-Jul-1976
The appellant was charged as a principal in the first degree, and the issue was whether the defence of duress was available. The Board considered the availability of duress as a defence to a criminal charge.
Held: The defence was not open to . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited by:
Cited – Regina v Safi (Ali Ahmed); Regina v Ghayur; Regina v Shah; Regina v Showaib; Regina v Mohammidy; Regina v Shohab; Regina v Ahmadi; Regina v Safi (Mahammad Nasir); Regina v Kazin CACD 6-Jun-2003
The defendants appealed convictions after rejection of their defence of duress. They had hijacked an aeroplane in Afghanistan, and surrendered eventually at Stansted. They said they were acting under duress, believing they had no other way of . .
Cited – Regina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .
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 . .
Applied – Regina v Gotts HL 3-Jun-1992
The defendant had been convicted of attempted murder, and appealed the rejection of his defence of duress.
Held: The defence of duress is not available to an accused facing a charge of attempted murder as a matter of policy, since it would not . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
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 – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Mentioned – Austin v Mayor and Burgesses of The London Borough of Southwark SC 23-Jun-2010
The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Cited – Regina v Conway CACD 28-Jul-1988
The defendant appealed against his conviction for reckless driving. He said the offence was committed out of necessity, since his passenger’s life was under threat.
Held: Necessity can only be a defence to a charge of reckless driving where . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 11 November 2021; Ref: scu.186845