Free Law Dissertations - The Defence Is Not Available, However, Either To Murder Or Attempted Murder.
The defence is not available, however, either to murder or attempted murder. Prior to Howe, a distinction was drawn between principals and accomplices to murder. Whilst the defence was not available to the actual perpetrator, it was available to the accomplice.
The distinction drawn between accomplices and perpetrators of murder was criticised as illogical and unsatisfactory. Professors Smith and Hogan point out that it is not always true that the perpetrator is more blameworthy than an accomplice. There may be little or no moral difference between them. Professor Williams agreed and pointed out that there is no moral distinction between them. Professor Williams agreed and pointed out that there is no moral distinction between, for example, the individual who is forced to drive a bomber to a pub and the person who is forced to carry the bomb into the pub. When the matter came before the House of Lords in Howe, their Lordships agreed that there was no valid distinction between the perpetrator of murder and an accomplice to it and overruled the decision in DPP for Northern Ireland v Lynch, holding that duress was not a defence to murder, irrespective of the degree of participation.
3.The Parameters of the Defence of Duress
The defence of duress operates where the accused has committed the actus reus of an offence with the appropriate mens rea but was compelled to act as he did because of threats made by another. Where the defence applies, it is a complete defence.
First, the accused’s will must be overborne by threats of death or serious bodily harm. This includes threats to kill or seriously harm a third party for whose safety D would reasonably regard himself as responsible. In Baker and Wilkins the Court of Appeal held that the defence was not available in cases where the defendant believed the criminal act was necessary to avoid serious psychological harm.
Secondly, the Court of Appeal in Graham held that there are two elements to the defence, the burden of proof being on the prosecution. The jury should consider whether:
the accused was, or may have been, impelled to act as he did because, as a result of what he reasonably believed X had said done, he had good reason to fear that, if he did not so act, X would kill him or cause him serious injury; and
a sober person of reasonable firmness, sharing the characteristics of he accused would have responded to whatever he reasonably believed X said or did by acting as the accused did.
These have been the parameters for many years, however a recent House of Lords case have narrowed these parameters somewhat. In the case of R v Hasan the parameters were narrowed. H was convicted of aggravated burglary.
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