Using the judgement of R v Howe 1987, critically consider the theoretical and pragmatic
arguments in favour & against extending the defence of duress to murder?
Duress and necessity are founded on the precept that one should not incur criminal liability
for crimes committed due to factors beyond his or her control.1 For example: an individual
threatening that an individual must choose to commit an offence or the perpetrator will kill
them. Within the common law, it is recognised that an act that would usually constitute
murder should be reduced to manslaughter in instances where the individual killed as a
result of threats or circumstances that do not amount to lawful excuse. 2 Despite this slight
recognition that those who kill under duress are less blameworthy than those who kill in
absence of such circumstance, the law has consistently declined to allow the defence of
duress for murder on both moral and pragmatic basis.3
This question cannot be answered without the examination of relevant case law. Most
notably, R v Howe overruled previous allowances in DPP v Northern Ireland, disallowing
duress as a defence for any degree of murder offence4, but why did this change occur?
In writing for the majority in R v Howe, Lord Hailsham explained ordinary firmness would be
the requirement that constitutes a core justification for the defence of duress at common
law.5 Obiter dicta from Lord Hailsham listed three core reasons against extending duress as
a defence for murder, the first branch of reasoning focuses on the ‘lesser of two evils.’ A
theoretical concern that a reasonable person of average courage would never conclude the
taking an innocent life to be the lesser of two evils. Such concern is rooted in the necessity
of sticking to the moral rulebook with no exceptions. Elements of kantianist theory echo
throughout this ruling. Namely a categorical imperative focused on moral intent which must
be universal.6 For an action to be permissible it must be possible to apply it to all people
without contradiction occurring.7
This rigid moral compass places intention at the height of importance when analysing
criminal liability. In other words, intending to kill without legal excuse is always wrong.
However, sticking to a moral compass so strictly may not produce the best results in reality.
It also may not actually be the most morally pure action. If focus is shifted to actions
producing the best results, rather than actions with the purest intent, how much credence
can be given to Hailsham’s pronouncement that duress can never be a defence to murder. If
you have the ability to stop a killer and you do not, are you morally pure because you did
not kill? Or are you morally dirty because you refused to do what needed to be done? Can
observing and allowing evil to take place be just as blameworthy as committing the evil
yourself?
1
Crown Prosecution Service, ‘Defences - Duress and Necessity’ (Legal Guidance).
2
John Child and David Ormerod, Essentials of Criminal Law (Oxford University Press, 2017)
3
R v Howe (1987) 2 WLR 568
4
Ibid
5
Ibid
6
Kant, Immanuel, Grounding for the Metaphysics of Morals (Hackett Publishing Company Inc, 1993)
7
Ibid
arguments in favour & against extending the defence of duress to murder?
Duress and necessity are founded on the precept that one should not incur criminal liability
for crimes committed due to factors beyond his or her control.1 For example: an individual
threatening that an individual must choose to commit an offence or the perpetrator will kill
them. Within the common law, it is recognised that an act that would usually constitute
murder should be reduced to manslaughter in instances where the individual killed as a
result of threats or circumstances that do not amount to lawful excuse. 2 Despite this slight
recognition that those who kill under duress are less blameworthy than those who kill in
absence of such circumstance, the law has consistently declined to allow the defence of
duress for murder on both moral and pragmatic basis.3
This question cannot be answered without the examination of relevant case law. Most
notably, R v Howe overruled previous allowances in DPP v Northern Ireland, disallowing
duress as a defence for any degree of murder offence4, but why did this change occur?
In writing for the majority in R v Howe, Lord Hailsham explained ordinary firmness would be
the requirement that constitutes a core justification for the defence of duress at common
law.5 Obiter dicta from Lord Hailsham listed three core reasons against extending duress as
a defence for murder, the first branch of reasoning focuses on the ‘lesser of two evils.’ A
theoretical concern that a reasonable person of average courage would never conclude the
taking an innocent life to be the lesser of two evils. Such concern is rooted in the necessity
of sticking to the moral rulebook with no exceptions. Elements of kantianist theory echo
throughout this ruling. Namely a categorical imperative focused on moral intent which must
be universal.6 For an action to be permissible it must be possible to apply it to all people
without contradiction occurring.7
This rigid moral compass places intention at the height of importance when analysing
criminal liability. In other words, intending to kill without legal excuse is always wrong.
However, sticking to a moral compass so strictly may not produce the best results in reality.
It also may not actually be the most morally pure action. If focus is shifted to actions
producing the best results, rather than actions with the purest intent, how much credence
can be given to Hailsham’s pronouncement that duress can never be a defence to murder. If
you have the ability to stop a killer and you do not, are you morally pure because you did
not kill? Or are you morally dirty because you refused to do what needed to be done? Can
observing and allowing evil to take place be just as blameworthy as committing the evil
yourself?
1
Crown Prosecution Service, ‘Defences - Duress and Necessity’ (Legal Guidance).
2
John Child and David Ormerod, Essentials of Criminal Law (Oxford University Press, 2017)
3
R v Howe (1987) 2 WLR 568
4
Ibid
5
Ibid
6
Kant, Immanuel, Grounding for the Metaphysics of Morals (Hackett Publishing Company Inc, 1993)
7
Ibid
