R v Howe (R v Clarkson)

Duress is unavailable as a defence to murder, whether the accused personally kills the victim or participates as a secondary party. The law cannot rationally distinguish between participants by reference to their technical role in the killing.

A person who intentionally procures another to kill may be convicted of murder even if the actual killer has a personal defence or is convicted only of manslaughter. Where duress is otherwise available, it includes an objective requirement. The defence fails if the prosecution proves that a sober person of reasonable firmness, sharing the defendant’s relevant characteristics, would have resisted the threat.

These conjoined appeals arose from two groups of murder convictions. Howe and Bannister participated in two killings and a conspiracy to murder. They claimed that a violent associate had compelled them. Burke shot a prospective witness and claimed that Clarkson had threatened to kill him if he refused. Clarkson was convicted on the basis that he had procured Burke to commit the killing.

The Court of Appeal (Criminal Division) dismissed all four appeals in [1986] 1 QB 626. It certified questions concerning whether duress was available to an actual killer; whether a procurer could be convicted of murder if the killer was acquitted by reason of duress; and whether duress contained an objective reasonable-firmness requirement.

1. The appeals were dismissed unanimously. The first certified question was answered in the negative. The second and third questions were answered in the affirmative.

2. Duress and murder. Lord Griffiths declared that duress was unavailable as a defence to murder irrespective of whether the accused was the actual killer or another participant. Lord Mackay of Clashfern reached the same conclusion because no rational and workable distinction could be drawn between principals in the first and second degrees. Lord Bridge of Harwich adopted the reasoning of Lord Griffiths and Lord Mackay. Lord Brandon of Oakbrook agreed that any alteration of this important and controversial rule should be made by legislation. The Lord Chancellor considered that the law should be restored to its position before Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653. The House therefore departed from that decision. The protection and sanctity of innocent human life precluded an accused from choosing that another innocent person should die.

3. Attempted murder. Lord Griffiths, with whose fuller reasoning Lord Bridge agreed, stated that duress was also unavailable to attempted murder. That offence requires an intention to kill, while murder may be committed with an intention to cause really serious injury. This conclusion was broader than was necessary to answer the certified question.

4. Liability of the procurer. Per Lord Mackay, a participant who intends the victim’s death may be convicted of murder even though the actual killer is convicted only of manslaughter for a reason personal to that killer. The reasoning in Reg v Richards [1974] QB 776 was incorrect and the decision was overruled. The personal exemption or reduced liability of the immediate actor does not compel an equivalent reduction in the procurer’s liability.

5. Objective element of duress. Per Lord Mackay, the approach in Reg v Graham (Paul) [1982] 1 WLR 294 was correct. The jury must consider whether the accused acted because of a reasonably perceived threat of death or serious physical injury. It must then ask whether the prosecution has proved that a sober person of reasonable firmness, sharing the accused’s relevant characteristics, would have resisted. Voluntary intoxication cannot diminish the required standard.

6. No partial defence. The House rejected the suggested compromise under which duress would reduce murder to manslaughter. Where duress applies, it is a complete defence. Creating a special partial defence to murder would require legislation.

2. House of Lords: The conjoined appeals were dismissed unanimously. The order of the Court of Appeal was affirmed. The certified questions were answered respectively no, yes and yes.
3. Court of Appeal (Criminal Division): In [1986] 1 QB 626, the court dismissed the appeals of Burke, Howe, Bannister and Clarkson and granted leave to appeal.
4. Crown Court: Howe and Bannister were convicted at Manchester Crown Court of two murders and conspiracy to murder. Burke and Clarkson were convicted at the Central Criminal Court in connection with Botton’s murder.