Director of Public Prosecutions for Northern Ireland v Lynch

Duress may provide a complete defence to a person charged with murder as a secondary party who intentionally assisted the killing. The defence does not negate intention. It excuses conduct which would otherwise be criminal because threats of death or serious physical injury compelled the accused to act.

The threat must remain effective when the offence is committed. The availability of a reasonable opportunity to escape, obtain protection or render the threat ineffective is material. Once sufficient evidence raises duress, the prosecution must disprove it. Whether duress can excuse the person who actually kills the victim was left open.

The appellant was convicted of murdering a police constable as a principal in the second degree. The prosecution alleged that, knowing of a murderous plan, he drove three armed men to the scene and drove them away after the shooting. He claimed that he had obeyed a reputedly ruthless gunman because he feared that disobedience would lead to his death.

The trial judge ruled that duress was unavailable on a charge of murder and withdrew the issue from the jury. The Court of Criminal Appeal in Northern Ireland dismissed the appeal but certified two questions. The principal question was whether duress could be a defence to an aider and abettor charged with murder. The second concerned whether intentional assistance, coupled with knowledge that death or serious injury would probably result, established complicity without proof of willingness to participate.

1. Appeal allowed by a majority of three to two. Lord Morris of Borth-y-Gest, Lord Wilberforce and Lord Edmund-Davies held that duress was legally capable of providing a defence to an aider and abettor charged with murder. The trial judge had therefore erred by withholding the issue from the jury.

2. Per Lord Morris and Lord Wilberforce, duress is an excuse superimposed upon conduct and intention which would otherwise constitute an offence. A person acting under threats may deliberately perform the prohibited act and know its likely consequences. The defence recognises that sufficiently compelling threats can nevertheless prevent the law from treating the conduct as criminal. Lord Edmund-Davies likewise treated duress as a plea of confession and avoidance rather than a negation of mens rea.

3. The relevant compulsion consists of express or implied threats of death or serious physical injury which remain effective when the offence is committed. The tribunal of fact must scrutinise whether the threat truly compelled the accused, whether a reasonable opportunity existed to escape or obtain protection, and whether the accused voluntarily exposed himself to the coercive situation. Once the evidence raises duress, the prosecution bears the burden of disproving it.

4. The majority confined the decision to secondary participation. Lord Morris and Lord Wilberforce expressly left open whether duress could excuse a principal who personally killed the victim. Lord Edmund-Davies cautioned that the distinction between principal and secondary party might be difficult to maintain, but did not decide the wider question.

5. On secondary liability, Lord Morris, Lord Simon of Glaisdale and Lord Kilbrandon considered that a person who intentionally assists a murderous plan, knowing that death or serious bodily injury will probably result, may aid and abet despite reluctance, regret or horror. Proof of an additional willingness or motive favouring the crime is unnecessary. Duress, where established, operates as a separate defence.

6. Lord Simon and Lord Kilbrandon dissented on the first question. They considered that the established exclusion of duress from murder should remain unless altered by legislation. Lord Simon would have treated duress as relevant to responsibility or punishment rather than as a complete defence.

7. The conviction was quashed. Under sections 13 and 14 of the Criminal Appeal (Northern Ireland) Act 1968, the case was remitted to the Court of Criminal Appeal in Northern Ireland for a new trial, with the appellant remaining in custody meanwhile.

1. House of Lords: By a majority of three to two, discharged the order of the Court of Criminal Appeal, quashed the conviction and remitted the case for a new trial.

2. Court of Criminal Appeal in Northern Ireland: On 27 June 1974, dismissed the appeal from conviction. The court held unanimously that duress was unavailable as a defence to murder, although O'Donnell J dissented on the separate issue concerning the intention required for aiding and abetting.

3. Belfast City Commission: On 20 June 1972, the appellant was convicted by a jury of murder as a principal in the second degree and sentenced to life imprisonment. The trial judge had ruled that duress was unavailable and did not leave it to the jury.