#5820 - Defences DuressCoercion - Irish Criminal Law

Duress/Coercion

The State v Walsh (SC 1981)

Facts

• The plaintiffs, a married couple, had been called before the courts on charges of contempt, as a result of statements made by them about the Special Criminal Court.

• There was a common law presumption that the act of a wife committed in the presence of her husband was a result of his coercion.

Issue

• Duress – Common Law Presumption

Judgment

• Even a rebuttable presumption based on the idea that a wife but not a husband can be coerced is repugnant to Article 40.1.

People v Whelan (CCA 1933)

Facts

• The accused was charged with receiving stolen goods and in his defence, claimed that he had acted under the influence of violent threats.

Issue

• Duress

Judgment (Murnaghan J)

• Threats of immediate death or violence that are so great to overbear ordinary human resistance should be accepted as justification for acts which would otherwise be criminal.

• This principle should be subject to some limitations – e.g. murder can not be justified.

DPP for Northern Ireland v Lynch (HoL 1975)

Facts

• The accused had aided a group of IRA men when they went to kill a police officer.

• He claimed that he had only participated as he had been subject to threats.

Issue

• Duress – Application to secondary offenders

Judgment

• Lord Morris of Borth-y-Gest (concurring)

• A man who aids and abets a murder under duress is in a different situation to someone who actually kills someone under duress – death is a certainty in the latter, but not in former.

• Thus the an aider or abettor of a murder should be allowed to rely on the defence of duress.

• Lord Wilberforce (concurring)

• In the history of law, the defence of duress seems to have evolved separately from the issues of acts or will – thus it should not be analysed in the context of intention.

• On a matter of common sense, the duress required to justify a crime must depend on the degree of heinousness of the crime – at some point the defence must become absolutely unavaible, but it should not be excluded as a rule.

• Although the authorities do not allow it for murder, they do not preclude for a second degree offender – thus it should be admitted.

• Lord Simon of Glasidale (concurring)

• Duress is such well-grounded fear of death, bodily harm or imprisonment if a certain act is not done, that overpowers the accused's wish not to perform the act.

• A sane criminal code can not allow a terrorist gang to set up a countervailing system of sanctions, nor can it punish people who infringe its provisions under stresses greater than the normal person can bear – this is usually best accommodated by exercising discretion in sentencing etc.

• However, in the case of crimes with a fixed penalty, this approach cannot be followed.

• As somebody under duress maintains his responsibility for the act, but lessens its extent, it should be capable of reducing murder to manslaughter – as this is a change in the law better effected by Parliament than the courts after weighing all the policy concerns, the court should merely apply this to the case of aiders and abettors.

• Lord Kilbrandon (concurring)

• The extension of the defence to principals would be engaging in law reform and should not be undertaken by the courts.

• Concurred on the other points with the trial judge.

• Lord Edmund-Davies (dissenting)

• The defence of duress is best assessed without considering it within the framework of mens rea.

• Homicide recognises degrees of seriousness – depending on the degree of duress in the circumstances, there should be a defence to murder.

R v Howe (HoL 1987)

Facts

• The appellants in this case had been subject to threats by Mr. M, who sought their assistance in murdering a number of people.

Issue

• Duress – Aiding and Abetting Murder

Judgment

• Lord Hailsham of Marylebone LC (concurring)

• It is neither good morals, policy or law to suggest that the ordinary man of reasonable fortitude is not to be supposed to capable of heroism if he is asked to take an innocent life rather than sacrifice his own.

• The Parole Board and the Minister in exercising his prerogative can still take the circumstances into account.

• Duress should not diminish responsibility as it is put forward as a concession to human frailty and does not absolves from guilt somebody who makes a conscious decision, possibly a calculated one, to take another life.

• Thus duress should not be a defence to murder or to aiding and abetting the same.

• Lord Bridge of Harwich (concurring – agreed with Lord Griffiths and Lord Mackay)

• Lord Brandon of Oakbrook (concurring – agreed with Lord Mackay)

• Lord Griffiths (concurring)

• There is no reason why if the law does not extend to the principal that it should extend to secondary offenders – as to extend the law to principals would involve the house in legislating, it should instead recognise that the defence does not extend to secondary offenders.

• In light of the fact that the common law has rejected the idea of duress as a mitigation in murder, and that this can be taken into account of the Parole Board and Home Secretary, duress should not diminish responsibility at trial.

• Lord Mackay of Clashfern (concurring)

• There is no precise distinction between the different levels of culpability of principal and secondary offender to render Lynch satisfactory.

• In light of how imprecise the definition of the defence is, and Parliament's failure to introduce it for murder, the court should avoid extending it.

• The value accorded to human life by the law, precludes anyone in any circumstances from deciding which of two or more innocent people deserve to die.

R v Hudson (CA 1971)

Facts

• The defendants were witnesses at a trial where they had committed perjury.

• Being charged for perjury, they testified that they had been threatened by a number of men not to identify the accused at the trial

Issue

• Duress – Whether threat must be immediate

Judgment (Widgery LJ)

• It is essential to the defence of duress that the threats be effective at the moment when the crime was committed – however, just because the threatened injury may not follow instantly does not mean that it is not effective when the crime is committed.

• In this case, the fact that the threats were unlikely to be acted upon in the courtroom does not render them any less compelling.

• Where the defence of duress is available, it is always open to the prosecution to prove that the accused has failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective.

DPP v Dickey (CCA 2003)

Facts

• The accused was charged and convicted of importing and possessing drugs with intent to sell or supply.

• The accused claimed that all the criminal acts with which he was charged were carried out while under duress.

Issue

• Duress – Burden of Proof

Judgment (McCracken J)

• Where the issue of duress is raised by the defence, it must be rebutted beyond reasonable doubt by the prosecution.

R v Fitzpatrick (CA 1976)

Facts

• The accused was a member of a terrorist organisation who was charged and convicted of murder.

• He claimed duress in that he wished to leave the IRA but was subject to threats and harrassment which forced him to stay.

Issue

• Duress – Membership of an Illegal Organisation

Judgment (Lord Lowry LCJ)

• The defence of duress accords a...