In a conjoined appeal, the murder of two men in separate circumstances, led to enquiry as to the extent of duress in criminal acts; and where used as a defence to murder, whether it was capable of effecting sentencing reduction or even acquittal where two parties were liable for the act.

Howe and Bannister 

In the first matter, it was argued by two of four defendants, that their participation in a number of killings and acts of abhorrent violence, was based upon a fear of retribution by the older of the men (M).

There were two counts of murder and one of conspiracy to murder, as the third man narrowly escaped death; and on both occasions, the two named appellants were present, albeit jointly culpable only for the killing of the second victim.

After the third defendant and M pleaded guilty to murder under section 1 of the Criminal Law Act 1977, it was then left to the appellants to submit pleadings that they had acted under duress while subject to the instructions of M; and that subsequently, their conviction for murder should be one reduced to manslaughter.

Burke and Clarkson

In this instance, the premeditated killing of a man was brought about through fear of his providing evidence against the second appellant in court.

It was argued by the first appellant, that his willingness to shoot the man was tempered by his fear of what might happen to him if he didn’t act on the second appellant’s instructions.

Further to this, was the contention that when confronted on his doorstep, the victim was killed through accidental firing of the gun, and not by a deliberate act.

For this reason, the first appellant pleaded manslaughter through accidental death, while the second appellant claimed to have had nothing to do with the shooting whatsoever.

When first argued, the jury were directed as to the merits of manslaughter under duress; and on both occasions, found the appellants equally liable for murder.

When taken to the Court of Appeal, the jury were again asked to take an objective view when considering the influence of those providing instructions, and those that committed the criminal acts; where again, the appeals were dismissed and the convictions upheld.

When presented to the House of Lords, it was argued that where objective reasoning for the crime of murder could not allow for a reduction through duress, it was only fair that the appellants were afforded the right to subjectively defend their actions in the face of perceived threats.

This approach ran contrary to English criminal law, and was subject to previous instances where similar claims had been presented and denied (R v Kray and R v Lynch as two such examples).

In Lynch however, the Court of Appeal had been willing to allow a defence of duress, when the appellant had merely driven the killer(s) to their destination.

Through careful examination of the facts behind Lynch, the House found that while duress was acknowledged in matters of serious wounding, it would constitute an affront to the principles of law if those accused of murder, or even as accomplices to murder, were entitled to reason away their actions on grounds of weakness or fear.

For that reason, the appeals were dismissed, whilst a deeper conviction of the all-encompassing weight of murder remained firm when the House reminded the parties that:

“The justification for allowing a defence of duress to a charge of murder is that a defendant should be excused who killed as the only way of avoiding death himself or preventing the death of some close relation such as his own well-loved child.”

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