Case briefing general principal of law 2.

Duress is the defence that applies where a person commits a crime because they
were acting under a threat of death or serious personal injury to themselves or
another.

R V. HOWE

The defendant had fallen under evil influence of a man called Murray. In the
appeal, the appellants with an intended victim were driven by Murray to an isolated area
where the appellants and Murray assaulted the victim and then Murray killed him. On a
second similar occasion the appellants jointly strangled a victim. On a third occasion, the
intended victim escaped. The appellant were tried on indictment on two counts of
murder and one of conspiracy to murder. The appellant, Howe was present as aiders
and abettors at the killing. Their defence was that they feared for their own lives if
they did not do as Murray directed. Murray is the secondary parties in this case. He
admitted to being parties to the killing and the conspiracy to kill in the
circumstances, they alleged that they are feared that Murray will treat them in
the same way as if he did not comply Murray instruction.

1. MURDER OF ELGAR

He was the first victim, 17 years old. He was offered a job driver by Murray.
Murray asks the five men to kill Elgar because he said that Murray was a grass.
Howe strangling Elgar with shoelace and he admitted to being parties to the
killing and the conspiracy to kill in the circumstances, they alleged that they are
feared that Murray will treat them in the same way as Elgar if he did not comply
Murray instruction.

2. MURDER OF POLLITT

Same course of the conduct took place as Elgar.

3. CONSPIRACY TO MURDER REDFERN

He suspected that something was afoot and managed with some skill to escape
on his motorcycle.

ISSUE THAT ARISING FROM THE CASE

1. whether duress is available as a defence in law to a person charged with murder as a

principal in the first degree (actual killer) ?

Duress defence was not available in murder. The principle that duress should never be a
defence to murder was laid down as far back as the sixteenth century. A person under
duress should die him or herself rather than escape by means of murdering an innocent
person.
"If a man be menaced with death, unless he will commit an act of treason, murder, or
robbery, the fear of death does not excuse him if he commit the fact; for the law hath
provided a sufficient remedy against such fears by applying himself to the courts and
officers of justice for a writ or precept de securitate pacis. Again, if a man be desperately
assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his
assailant's fury he will kill an innocent person then present, the fear and actual force will
not acquit him of the crime and punishment of murder, if he commit the fact; for he
ought rather to die himself, than kill an innocent: but if he cannot otherwise save his
own life, the law permits him in his own defence to kill the assailant;

2. whether a sober person of reasonable firmness sharing the appellants' characteristics

would have responded to the threats by taking part in the killing.

In duress the words or actions of one person break the will of another. The law requires
a defendant to have the self-control reasonably to be expected of the ordinary citizen in
his situation. It should likewise require him to have the steadfastness reasonably to be
expected of the ordinary citizen in his

3. Whether the defence of duress can be applicable for principal offender.

Principal offender is the one who commit the actual killing. The defence are not
applicable for the principal of offender. In this situation, Howe took part in the killing of
elgar and politt and involved with conspiracy of redfern with banister burke and Clarkson
which this we known as joint enterprise.

COURT’S VERDICT

Giving the judgment of the Court of Appeal Lord Lane C.J. , Russell and Leggatt that the
decision involved the following points of law of general public importance. In dismissing
the appeals the court certified three points of law of general public importance were
involved in the decisions to dismiss the appeals, namely:

1. Is duress available as a defence to a person charged with murder as a principal in the

first degree (the actual killer)?

2. Can the one who incites or procures by duress another to kill or to be a party to a
killing be convicted of murder if that other is acquitted by reason of duress?

3. Does the defence of duress fail if the prosecution prove that a person of reasonable
firmness sharing the characteristics of the defendant would not have given way to the
threats as did the defendant?"

Appeals dismissed

In howe the house of lords put foward four grounds for its decision that duress
should not be a defence for secondary parties to murder.

1. An ordinary person of reasonable fortitude was expected to lay down their own
life rather than take that of someone else.
2. In choosing to kill an innocent person rather than die themselves, defendants
could not be said to be choosing the lesser of two evils.

3. Parliament had not chosen to make duress a defence to murder when

recommendations had been made that this should be done