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Murder under duress and judicial decision-making in the House of Lords
Published online by Cambridge University Press: 02 January 2018
Extract
While finding fault with House of Lords’ decisions in the field ofcriminal law is by no means a new academic sport, the present decade is proving particularly fruitful for the critic. The precise ramifications of Caldwelll and Lawrence are still being thrashed out. seymour, on manslaughter, was unforgiveably ambiguous. Moloney and Hancock and Shankland left the mental element in murder hopelessly opaque. In impossible attempts Anderton v Ryan revealed a degree of ineptitude which even the House of Lords had to recognise in overruling itselfonly a year later in Shivpuri.
It is not simply a questionofacademics taking issue with the outcomeof a particular decision. The further, and in some respects even more worrying, aspect of many of these decisions is the quality of the legal reasoning they embody.
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References
1. [1982) AC 341.
2. [1982) AC 510.
3. Eg, R.M. Lynn, “‘Obvious” and “Serious” Difficulties’ [1986) 37 NILQ 237.
4. [1983) 2 AC 493.
5. The difficulties of the decision are lucidly exposed by R. Card, Cross and Jones: Introduction to Criminal Law (10th edn, 1984) at pp 176–180. The subsequent opinion of the Privy Council in Kong Chcuk Kwan v R (1986) 82 Cr App R 18 did little to resolve the difficulties: see J.M. Brabyn, ‘A Sequel to Seymour Made in Hong Kong: the Privy Council decision of Kong Cheuk Kwan v R (1987) Crim LR 84.
6. [1985) AC 905.
7. [1986) AC 455.
8. See J.R. Spencer (1986) 45 CLJ 161. (The House of Lords can take no credit for subsequent guidance given by the Court of Appeal in Nedrick (1986) 1 WLR 1025.).
9. [1985) AC 560, strongly criticised by Glanville Williams, ‘The Lords and Impossible Attempts, or Quis Curtodiet Ipsos Custodes?’ (1986) 45 CLJ 33.
10. [1986) 2 WLR 988.
11. See Glanville Williams, loc cit.
12. J.R. Spencer (1984) 43 CLJ at 10 (referring to Seymour and Morris (1984) AC 320, a House of Lords decision on the meaning of ‘appropriation’ in theft).
13. [1987) 1 All ER 771.
14. The other two questions before the House concerned the test of duress and whether one who incites or procures by duress another to kill or to be a party to a killing can be convicted of murder if that other is acquitted by reason of duress.
15. [1986) QB 626 at 641.
16. Per Lord Griffiths at 789, Lord Bridge emphasising his concurrence at 784.
17. [1975) AC 653.
18. Lord Hailsham at 778, 782, Lords Bridge and Brandon at 784, Lord Griffiths at 789, 790, Lord Mackay at 798. (Lord Hailsham, at 777, 778, would have been prepared to distinguish the actual killer from a secondary party, cf Lord Morris in Lynch at 671, 672.) The decision thus rids the law of the wholly unprincipled distinction arising from Lynch and Abbott v R (1977) AC 755 (see Smith (1976) Crim LR 563 at 564-565 and Graham (1982) 1 All ER 801 at 804), but substitutes equally anomalous distinctions (see Smith (1976) Crim LR 480 at 483). Lord Brandon, at 784, alone expressed dissatisfaction at the outcome.
19. Per Lord Hailsham at 776.
20. ‘[A man] ought rather to die himself than kill an innocent’, Pleas of the Crown Vol 1, 51.
21. Cf the minority approach in Abbott at 771, ‘Great stress has been laid by the majority of their Lordships upon the apparent unanimity with which great writers of the past have rejected duress as a defence, but, on any view, they have to be read with circumspection in these days, for the criminal courts have long accepted duress as an available defence to a large number of crimes from which those same writers withheld it.’.
22. [1934) IR 518 at 526.
23. [1947) KB 997 at 1006.
24. (1952) 36 Cr App R 125 at 128.
25. At 672.
26. (1838) 5 C & P 616, cited as authority by Lord Griffiths in Howe at 785.
27. See Glanville Williams, Criminal Law, The General Part (2nd edn, 1961) at pp 759, 760.
28. (1884) 14 QBD 273.
29. At 778.
30. Eg, Stephen, Digest Art 11, n 2, declaring that he could find no principle in it; Glazebrook, ‘The Necessity Plea in English Criminal Law’ (1972) A CLJ 87 at 112-115; Glanville Williams, ‘A Commentary on R v Dudley and Stephens' (1978) 9 Cambrian Law Review 94.
31. At 796. Cf Lord Griffiths at 785.
32. Supra n 30.
33. At 286, 287.
34. At 288.
35. Passim.
36. See further infra under sub-heading ‘Continuing confusion between justification and excuse’.
37. Eg, P.H.J. Huxley, ‘Proposals and Counter Proposals on the Defence of Necessity’ [1978) Crim LR 141 at 144; Glanville Williams, Textbook of Criminal Law (2nd edn, 1983) at pp 634, 635; Celia Wells, ‘Necessity and the Common Law’ (1985) Ox J Leg Stud 471. The Law Commission (Law Corn No 83), Criminal Law Report on defences of General Application (1977) failed to consider the possibility. Cf Law Reform Commissioner for Victoria, Report No 9, Duress, Coercion and Necessity (1980) esp paras 1.07, 3.47, 4.19.
38. Per Lord Edmund-Davies at 713 in Lynch.
39. Per Lord Diplock in Hyam v DPP (1975) AC 55 at 89.
40. See Lords Bridge and Brandon at 784.
41. At 781.
42. At 782. See also infra, n 52, n 69 and associated text.
43. [1965) AC 1001 at 1021, quoted by Lord Mackay at 793.
44. At 796, 797.
45. Law Com No 83, para 2.44.
46. At 784.
47. Cf Lord Wilberforce in Lynch at 684, ‘[The House] would not discharge its judicial duty if it failed to define the law's attitude to this particular defence in particular circumstances.’ See also n 52 infra and associated text.
48. At 787, 796 respectively.
49. Law Com No 83, Appendix 1.
50. [1982) 1 All ER 801 at 806.
51. At 800. See also 715, 782, 784, 790.
52. Sharp (1987) 3 WLR 1 and see discussion by Smith (1987) Crim LR 566 at 567. Cf Shepherd (1987) Times, 16 May, CA.
53. [1977) NI 20.
54. Clauses 1(3)(c), 1(4), l(6). English authority lends support to the view that the defence is available where the protection would be ineffective, see Hudson and Taylor (1971) 2 QB 202 and R v K (1984) 78 Cr App Rep 82, discussed by Smith (1983) Crim LR 736.
55. At 784.
56. At 788.
57. Law Com No 143, supra n 37.
58. See esp Lord Hailsham at 778, 781, Lord Griffiths at 785, 789, 790, Lord Mackay at 798.
59. As Hogan observes, ‘… whose morality? Is there some book on the library shelves which provides us all with an agreed guide?’ (‘Forced to commit murder’, The Law Magazine May 1987 32 at 33.).
60. Cf Wechsler and Michael, ‘A Rationale of the Law of Homicide’ (1937) 37 Col LR 738, ‘… when a third person's life is also at stake even the path of heroism is obscure’.
61. See Hart, Concept of law (1961) Ch VIII.
62. At 789.
63. See Jonathan Glover, Causing Death and Saving Lives (1977).
64. See Smith and Hogan, Criminal Law (5th edn, 1983) at p 328.
65. Homicide Act 1957, s 3.
66. At 789.
67. See Packer, The Limits of the Criminal Sanction (1969) pp 64, 65 and Cf Hart, Punishment and Responsibility (1968) Ch II.
68. At 773.
69. Supra, n 52 and associated text.
70. Supra, n 50 and associated text.
71. See discussion by Hall, General Principles of the Criminal Law (2nd edn, 1960) at 444-8.
72. A History of the Criminal Law of England (1883) Vol 1 at 107.
73. Fletcher, Rethinking Criminal Law (1978) at 825, discussed by Simon Gardner, ‘Instrumentalism and Necessity’ (1986) 6 Ox J Leg Stud 431.
74. Per Lord Hailsham at 780.
75. Supra notes 68, 69, 70 and associated text.
76. At 782.
77. Ibid.
78. Ibid.
79. At 790.
80. At 788.
81. Law Com No 83.
82. At 780, 781.
83. At 785, 790.
84. See Wasik, ‘Duress and Criminal Responsibility’ [1977) Crim LR 453.
85. Although the examples cited by Lord Griffiths, at 790, envisage this being exercised in the coercee's favour only when his role in the killing was minimal.
86. Technically, of course, there is no formal scope for this approach in respect of murder because of the mandatory penalty, but Lord Hailsham, at 781, points out that the trial judge may decide to make no minimum recommendation and will always report to the Home Secretary.
87. See Lynch Lord Wilberforce, at 685 and Lord Edmund-Davies at 707; Law Com No 83, paras 2.16-2.18.
88. At 707.
89. Eg, Hart, Punishment and Responsibility at 13-17; Fletcher ‘The Individualisation of Excusing Conditions’ (1974) 47 S Cal Law Rev 1269 and Rethinking Criminal Law esp Ch ten; Glanville Williams, ‘The Theory of Excuses’ (1982) Crim LR 732.
90. Eg, Peter Alldridge, ‘The Coherence of Defences’ [1983) Crim LR 665.
91. Eg, Dressler, ‘New Thoughts about the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking’ (1984) 32 UCLA Law Rev 61.
92. At 128, 129.
93. At 526.
94. At 680, 681.
95. At 783.
96. Citing Lord Edmund-Davies in Lynch at 709-711. (A closer reading of Lord Edmund-Davies' excellent speech might have provided Lord Bridge with a clearer understanding of the defence's excusatory rationale.).
97. Law Com Working Paper No 55, Defences of General Application (1974) para 3.
98. Supra, notes 50, 51.
99. At 782.
100. (1974) 47 S Cal Law Rev at 1277.
101. At 798.
102. Supra n 28 and ensuing discussion.
103. At 779, 780.
104. Cf Hogan, loc cit.
105. At 780.