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You are here: BAILII >> Databases >> The Law Commission >> Homicide: Murder, Manslaughter And Infanticide (Report) [2006] EWLC 304(6) (28 November 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/304(6).html Cite as: [2006] EWLC 304(6) |
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PART 6
DURESS
INTRODUCTION
6.1 Consultees were more divided on duress as a defence to murder and attempted murder than on any other aspect of our review. There was a general consensus that duress should be, in some form, capable of being a defence to first degree murder, second degree murder and attempted murder. Accordingly, we do not intend to rehearse the reasons set out in the CP[1] for and against extending the defence to those offences.
6.3 We believe that there are five main options.
(1) Duress should be a full defence to first degree murder, second degree murder and attempted murder.
(2) Duress should be a partial defence to first degree murder resulting in a conviction for second degree murder and a full defence to second degree murder and attempted murder.
(3) Duress should be a partial defence to first degree murder resulting in a conviction for second degree murder and a partial defence to second degree murder resulting in a conviction for manslaughter.
(4) Duress should be a partial defence to first degree murder and second degree murder, in each case resulting in a conviction for manslaughter.
(5) Duress should be a partial defence to first degree murder but not a defence to second degree murder or attempted murder.
We are recommending option (1).
THE CURRENT LAW
6.5 Duress, if raised by admissible evidence and not disproved by the prosecution, is a full defence to all crimes except murder,[2] attempted murder,[3] possibly some forms of treason and, possibly, conspiracy.[4] The prevailing judicial view is that duress operates as an excuse rather than a justification.[5]
6.6 There are two forms of duress: duress by threats and duress of circumstances.[6] The issue of whether duress should be a defence to murder has been discussed primarily in relation to duress by threats.[7] Duress by threats is where a person is told "commit a criminal offence or else you (or someone else) will be killed or seriously injured". The threat emanates from another person.
6.7 By contrast, duress of circumstances is where a person commits an offence in response to a threat of death or serious harm that is not the result of being told "commit it or else".[8] An example is provided by the famous case of Dudley and Stephens.[9] Two shipwrecked sailors, threatened with death by starvation, killed and fed on a cabin boy who was shipwrecked with them.
6.8 The general principles that govern duress by threats were set out by the Court of Appeal in Graham[10] and subsequently approved by the House of Lords in Howe.[11] In Graham, Lord Chief Justice Lane said that in law a person acts under duress by threats if the answers to the two following questions are "yes" and "no" respectively:
(1) Was [D], or may [D] have been, impelled to act as he did because, as a result of what he reasonably believed [X] had said or done, he had good cause to fear that if he did not so act [X] would kill him or (if this is to be added)[12] cause him serious physical injury?
(2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [X] said or did by taking part in the killing? [13] ("the objective limb of the defence")
The general principles that govern duress of circumstances are substantially the same.
6.9 A feature of the defence, reinforced by the recent decision of the House of Lords in Z,[14] is its very stringent qualifying conditions,[15] namely:
(1) the threat must be one of death or serious physical harm;[16]
(2) the threat must be extraneous to the defendant;[17]
(3) the threat must be directed at the defendant, a member of his or her immediate family or someone for whose safety the defendant reasonably regards him or herself as responsible;[18]
(4) although there does not have to be a threat in fact,[19] the defendant must believe in the existence of a threat and his or her belief must be reasonable. Further, the defendant must reasonably believe that the threat will be implemented;[20]
(5) although the threat need not be the sole motive for the defendant committing the principal offence, the defence is not available if the prosecution can prove that the defendant would have committed the offence even if the threat had not been made;
(6) there must be no evasive action that the defendant can reasonably be expected to take (generally the defendant must reasonably believe the threat to be immediate or almost immediate); and[21]
(7) the defendant must not have voluntarily laid him or herself open to the duress. In particular, if the defendant voluntarily associates with those engaged in criminal activity where he is aware or ought to be aware[22] that he or she may be subject to any compulsion by threats of serious violence, the defendant cannot rely on duress as a defence to any act which he or she is thereafter compelled to do.
6.10 In addition to these qualifying conditions the defence involves an evaluative condition (the objective limb of the defence) that must also be satisfied. The defence is not available if no reasonable person, sharing the defendant's ("D's") characteristics, would have responded to the threat by committing the principal offence. In Bowen,[23] the Court of Appeal said that relevant characteristics include age, (possibly) sex, pregnancy, serious physical disability and "recognised mental illness or psychiatric condition". Characteristics due to self-induced abuse, whether through alcohol or drugs, are not relevant characteristics and neither is being unusually pliant or timid.[24]
6.11 In Z,[25] Lord Bingham expressed the prevailing judicial attitude to the defence:
… I find it unsurprising that the law in this and other jurisdictions should have been developed so as to confine the defence of duress within narrowly defined limits.[26]
Our provisional proposals and questions
6.12 In the CP, we provisionally proposed that duress should be a partial defence to first degree murder, reducing the offence to second degree murder.[27]
6.14 We provisionally proposed that for a plea of duress to succeed as a partial defence to first degree murder (and to second degree murder and attempted murder were the defence to apply to those offences), the threat must have been one of death or life-threatening harm.[28]
6.15 In respect of children and young people, we invited views as to whether duress, if successfully pleaded as a defence to first degree murder, should give rise to more lenient treatment than in the case of adults.[29]
6.16 In addition, we made the following firm proposals:
(1) In deciding whether a person of reasonable firmness might have acted as D did, the jury should be able to take into account all the circumstances of D, including his or her age, other than those that bear upon his or her capacity to withstand duress.
(2) D's belief as to the existence of the threat and its being implemented must be not only honestly but also reasonably held.[30]
Responses to the provisional proposals and questions
OUR RECOMMENDATIONS
6.21 We recommend that:
(1) duress should be a full defence to first degree murder, second degree murder and attempted murder.
(2) For duress to be a defence to first degree murder, second degree murder and attempted murder, the threat must be one of death or life-threatening harm.
(3) The defendant should bear the legal burden of proving the qualifying conditions of the defence on a balance of probabilities.
OPTIONS THAT WE REJECT
Option (2): duress should be a partial defence to first degree murder resulting in a conviction for second degree murder but a full defence to second degree murder and attempted murder
she did was to save rather than take life.[31]
6.25 In addition, the indulgence of trying to persuade the jury to substitute motive for intention, while available to the principal offender, would be denied to some secondary parties. It would not be available to secondary parties who were charged with first degree murder not on the basis that they intended to kill but on the basis that they had foreseen the risk of the principal offender committing first degree murder.[32] For example, D1 and D2 are threatened with death unless they assist a gang of burglars to commit a burglary. D1 and D2 both anticipate that their role will be confined to driving members of the gang to the house where the burglary will be committed and keep watch. D1, but not D2, anticipates that, should the householder disturb the gang, the gang will intentionally kill the householder. On arriving at the house, D1 is ordered to stay in the car and keep watch. D2 is told to accompany the gang into the house. The householder does disturb the gang one of whom tells D2 to stab the householder several times in the chest. D2 does so believing that he will be shot unless he does so. Whereas D2 may seek to persuade a jury that he did not intend to kill, D1 will not be able to deny the fault element that makes him guilty of first degree murder as a secondary party, namely that he foresaw that the householder might be intentionally killed.
D, under duress, shoots both V1 and V2 with intent to kill, killing V1 but not V2.
6.28 These considerations militate against recommending this option. In addition, for the reasons that we set out below,[33] we believe as a matter of principle that duress ought to be a complete rather than a partial defence not only to second degree murder but also to first degree murder.
Option (3): duress should be a partial defence to first degree murder resulting in a conviction for second degree murder and a partial defence to second degree murder resulting in a conviction for manslaughter
Option (4): duress should be a partial defence to both first degree murder and second degree murder, in each case resulting in a conviction for manslaughter
6.32 Similar, if not identical, considerations apply as in option (3) above.
Option (5): duress should be a partial defence to first degree murder but not a defence to second degree murder or attempted murder
6.33 Some consultees, while of the view that duress should be a partial defence to first degree murder, argued that duress should not be a defence to second degree murder or attempted murder. This was because there would be sufficient flexibility in the discretionary life sentence for second degree murder to accurately reflect any mitigation arising from duress.[34]
This option would be consistent with our recommendations in relation to the partial defences of provocation and diminished responsibility. However, the option has to be evaluated in the light of the fact that duress operates as a full defence to all offences to which under the present law it is capable of being a defence.
6.34 As under option (2), it is arguable that an anomaly arises with the treatment of attempted murder.[35] It becomes a matter of chance whether D has a partial defence or no defence at all.
6.35 Here is another example illustrating how option (5) would operate less than satisfactorily. D, under duress, attacks three people V1, V2 and V3. D intends to kill V1 and does so. D intends to cause serious harm to V2 and V3. V2 dies but V3 survives. D would be guilty of second degree murder in relation to V1. D is also guilty of second degree murder in relation to V2. D is acquitted of causing grievous bodily harm with intent to V3.[36] We do not consider this to be a satisfactory outcome.
THE OPTION THAT WE ARE RECOMMENDING
Option (1): duress should be a full defence to first degree murder, second degree murder and attempted murder
A full defence to first degree murder
6.36 We acknowledge that the majority of consultees who favoured duress being a defence to first degree murder agreed with our provisional proposal that it should be a partial rather than a full defence to first degree murder. At the same time, a significant minority[37] thought that it should be a full defence and, on balance, we are now persuaded that it should be.
… where the duress is so compelling that the defendant could not reasonably have been expected to resist it, perhaps being a threat not to the defendant himself but to an innocent hostage dear to him, it would be … unjust that the defendant should suffer the stigma of a conviction even for manslaughter. We do not think that any social purpose is served by requiring the law to prescribe such standards of determination and heroism.[38]
(1) we thought it important that there should be consistency with the partial defences of provocation and diminished responsibility, both of which we were proposing should reduce first degree murder to second degree murder;
(2) it would not be right for a person who had intentionally killed to be completely exonerated.
REASONS FOR QUESTIONING OUR PROVISIONAL PROPOSAL THAT DURESS SHOULD BE A PARTIAL DEFENCE TO FIRST DEGREE MURDER
6.39 We now believe that, in this context, we exaggerated the importance of treating duress in a manner that was consistent with the way provocation and diminished responsibility fitted into our proposed structure.[39] Professor Ormerod commented:
… I am not convinced that duress has been shown to be sufficiently similar to provocation and diminished responsibility to warrant like treatment. An argument could be made that it ought to be treated like self defence, and therefore ought to afford a complete defence. In truth, the defence is distinct from all of the others. It has a strong objective element which allies it with provocation, and it focuses on external pressures triggering a response, but it is a defence in which D has made a more calculated choice. Similarly, with diminished responsibility, the defences might be regarded as excuses (whatever that may mean), but duress is very different from the quasi-medicalised defence (unless we are treating them both as some form of diminished capacity defence).
REASONS FOR CONCLUDING THAT DURESS SHOULD BE A FULL DEFENCE TO FIRST DEGREE MURDER
6.46 An important counter-argument is that the law rightly attaches special sanctity to innocent human life and that this should preclude duress ever being a full defence to first degree murder.[40] We now depart from this view, in so far as we believe that the 'sanctity of life' argument was not meant to deal with examples such as ten year olds or peripheral secondary parties becoming involved in killing under duress. The 'sanctity of life' argument may be more confusing than illuminating in this context.
6.48 Of course, views may differ as to what makes a case more or less deserving of excuse. For example, some, but not all, will think that a person is more deserving of excuse if he or she commits first degree murder under duress in order to secure a net gain of life.[41] Alternatively, some will believe that those who commit
first degree murder under duress in order to save the life of an innocent third party are more deserving of excuse than those who do so to save themselves, particularly if the killing also secures a net gain of life. Others will point to the case of a secondary party such as a taxi driver who is threatened with death unless he or she drives a gang to a location where he or she knows they are intending to kill a householder.
6.52 We also think it important to bear in mind the stringent qualifying conditions that attach to the defence. In particular, the majority of the House of Lords in Z[42] were firmly of the view that the defence ought not to be available to D if he or she saw or ought to have foreseen the risk of being subjected to any compulsion by threats of violence. We believe that this will serve to exclude the most unmeritorious cases where the defence should simply not be available. It is true that it will not in itself exclude all undeserving cases but we believe that juries should be trusted not to accept the defence in undeserving cases.
Distinguishing cases according to whether or not the defendant acted in response to a threat against his or her own person
6.55 Consider these examples. A child is threatened with life-threatening harm by his or her psychopathic father unless he or she helps him to perpetrate a murder. A pregnant woman is threatened with death unless she kills V. She yields to the threat in order to safeguard the life of her unborn baby who, while in the womb, has no legal recognition for the purposes of the criminal law, apart from the offences of child destruction[43], attempting to procure a miscarriage[44] and offences under the Abortion Act 1967. An uncle threatened with death commits murder in order to preserve his own life so that he can donate a kidney to his desperately ill nephew. In our view, it would be wrong to deny such persons a complete defence merely because they acted in order to preserve their own lives.
Distinguishing between principal offenders and secondary parties
6.58 Further, it would put a premium on determining whether someone was a principal offender or a secondary party. For example, a husband and wife are threatened that their child will be killed unless they kill V. They decide to kill V by poisoning. Before V joins them for lunch, together they measure out a fatal dose of strychnine which the wife sprinkles over V's soup. V drinks the soup and dies. On one view, the wife is the principal offender because she is the most direct and immediate cause of V's death. Her husband is a secondary party. Suppose, however, that, in order to introduce the fatal dose into V's soup, the husband lifts V's soup bowl across the dining table and then, after the wife ladles out the soup, replaces the bowl. Alternatively, the husband's sole contribution is to pass a spoon to V.[45] We believe that to make the liability of the husband and wife dependent on whether or not one was a principal offender and the other a secondary party would result in liability being dependent on fine distinctions that would reflect poorly on the law, particularly where the issue is whether one or other, or both, is guilty of first degree murder.
Consistency with provocation and diminished responsibility
6.60 On the assumption that provocation, diminished responsibility and duress are all defences that operate by way of excusing D, the way that the current law treats these defences is illogical. Provocation and diminished responsibility each has a weaker moral claim to excusatory status in the law of murder than duress. It is true that provocation is grounded on the view that D has lost his or her self-control whereas in cases of duress D has made a conscious, albeit an unwilling, choice. It is also true that in cases of diminished responsibility, D is partially excused because it is recognised that his or her responsibility for intentionally killing is lessened. However, in cases of provocation and diminished responsibility, D has not killed in order to preserve innocent life and yet he or she has a partial excuse. By contrast, a person who pleads duress is one who has sought to avoid the death of or serious physical harm[46] to an innocent person (not necessarily him or herself) by doing no more than is required to avert that harm. Yet, provocation and diminished responsibility excuse murder while duress does not.
6.61 More importantly, it is inappropriate to characterise duress as an excusatory defence in the same way that provocation and diminished responsibility are excusatory. Although it cannot be said of all cases, some instances of duress come close to being a justification for killing rather than an excuse. To give an example of duress of circumstances, the roped climber who cuts the rope after his or her companion has accidentally slipped and is dragging them both to oblivion is a case in point. The same claim cannot be made in respect of either provocation or diminished responsibility. No act of killing comes close to being justified if committed solely in response to provocation or as a result of diminished responsibility. Viewed in this light, the case for distinguishing duress from provocation and diminished responsibility becomes more compelling.[47]
6.62 The fact that we are recommending a reformulated partial defence of provocation does not detract from the above. It would be wrong to conclude that the reformulation, by removing the loss of self-control requirement and at the same time requiring that D must have a "justifiable sense of having been seriously wronged", places the defence on a justificatory basis. The first limb of the reformulation is seeking to do two things. First, it avoids the well known problems caused by the loss of self-control requirement.[48] Secondly, it is emphasising that the provocation must be of such gravity that if a person responds to it by intentionally killing, he or she merits being partially excused despite his or her conduct lacking any justification.
… the law should not insist upon condemning a person who acts under compulsion which he is unable to resist; that in doing so it would be making excessive demands on human nature and imposing penalties in circumstances where they are unjustified as retribution and irrelevant as a deterrent. The law must recognise that the instinct and perhaps the duty of self-preservation is powerful and natural, and that it would be 'censorious and inhumane if it did not recognise the appalling plight of a person who suddenly finds his life in jeopardy unless he submits and obeys'.[49] This argument is most cogently advanced by the majority in Lynch's case and convinces us that it would be quite unjust that a person who has committed an offence only because of threats which he could not withstand (subject to qualifications as to the nature of the threats) should face trial and conviction with the obloquy inherent therein.[50]
6.65 We recommend that duress, if successfully pleaded, should be a full defence to first degree murder.
A possible refinement of our recommendation
6.66 Under our recommendation, duress would be a full defence to first degree murder if D satisfies the qualifying conditions[51] on a balance of probabilities and the jury concludes that a sober person of reasonable fortitude in the circumstances of D might have committed first degree murder.
A full defence to second degree murder and attempted murder
ADDITIONAL RECOMMENDATIONS
Fear of death or life-threatening harm
6.75 We are conscious that some consultees have reservations about the threat having to be one of life-threatening harm. Some believe that it would exclude deserving cases such as a parent witnessing his or her child being tortured.[52] Others believe that the concept 'life-threatening' is too vague and ambiguous.[53] However, it is important to recognise that the threat does not have to be objectively life-threatening. It is the reasonableness of D's perception of the threat that is critical. D would have to prove that he or she honestly and reasonably believed that the nature of the threat was such that, if implemented, would involve a risk to life. The jury would be entitled to take into account the age and vulnerability of the person being threatened with harm. Thus, a jury might well conclude that D reasonably believed that a threat of torture to his or her five-year-old child involved a risk of life-threatening harm while taking a different view if the threat of torture was directed at the D's spouse.
Reasonably held belief
6.77 We did not pose a direct question to consultees as to whether D's belief that a threat of death or life-threatening harm had been made and would be implemented had to be reasonably held. A few consultees questioned the need for the belief to be reasonably held. It was suggested that the requirement was unnecessary because a jury would be unlikely to conclude that an unreasonable belief was an honestly held belief.[54] One consultee thought that a reasonableness requirement would make it more difficult for children and the mentally vulnerable to make out the defence.[55]
6.78 Previously the Law Commission has expressed support for the proposition that D's belief should only have to be honestly held.[56] Further, neither provocation nor self-defence import a test of reasonableness.[57] However, in this respect, there are important differences between duress, on the one hand, and provocation and self-defence, on the other hand. The defence of duress revolves around a threat of death or serious-harm that will materialise at some point in the future should D not do what he or she has been told to do. Typically, D will have time to reflect on and assess the nature and strength of the threat. As Professor Ormerod commented, "D has made a more calculated choice".
If there has been an attack so that defence is reasonably necessary it will be recognised that a person cannot weigh to a nicety the exact measure of his necessary defensive action.[58]
6.80 It is clear that at common law, D's belief in the existence of the threat and that it will be implemented must be reasonably held.[59] It would be anomalous that if D is pleading duress as a defence to theft his or her belief in the existence of the threat must be reasonably held but not if D is pleading duress as a defence to first degree murder, second degree murder or attempted murder.
6.81 At the same time, we see no reason why the particular circumstances of D should not be capable of being taken into account in determining whether or not his or her belief was reasonably held. This would enable account to be taken of the age and vulnerability of D. It would also accord with the decision in Martin (David Paul).[60] The Court of Appeal held that expert testimony that D was suffering from a recognised psychiatric condition which made him more likely than others to regard things said or done as threatening and to believe that they would be carried out was admissible evidence. We do not believe that Z[61] casts doubt on that decision.
The defendant's characteristics for the purpose of the objective limb of the defence[62]
6.83 Two consultees, Professor Ronnie Mackay and Nicola Padfield, disagreed with our proposal that the relevant characteristics should not include those which bear on D's capacity to withstand duress. Professor Mackay argued that to alter the common law rule in Bowen,[63] in which it was held that relevant characteristics include psychiatric syndromes and mental illnesses, would be unfair and is driven by a suggested need for consistency with provocation. Professor Mackay argues that the two pleas are very different in nature. Professor Mackay further argues that it is speculative to suggest that the decision in Attorney General for Jersey v Holley[64] will mean that Bowen will no longer be followed.
6.84 Despite Professor Mackay and Nicola Padfield's objections, we believe that in deciding whether a person of reasonable firmness would have acted as D did in a case of first degree murder, second degree murder and attempted murder, the jury should be able to take into account all of the circumstances of D, including his or her age, other than those which bear upon his or her capacity to withstand duress. This recommendation is consistent with our recommended reformulation of the partial defence of provocation.[65] We believe that it would be anomalous if there were to be a significant distinction between the characteristics that are relevant to provocation and duress.
A reverse burden of proof
A further consultation
THE FURTHER QUESTIONS THAT WE ASKED
6.88 In relation to first degree murder, we asked whether consultees would prefer duress to be:
(1) a full defence with the burden on the prosecution to disprove;
(2) a full defence with the persuasive burden on D;
(3) a partial defence with the burden on the prosecution to disprove; or
(4) a partial defence with the persuasive burden on D.
6.89 In relation to second degree murder we asked whether consultees would prefer duress to be:
(1) a full defence;
(2) a partial defence resulting in a conviction for manslaughter; or
(3) no defence.
6.91 In relation to Article 6(2) of the European Convention Human Rights (ECHR) we asked whether:
(1) introducing a defence, but subject to a reverse burden, would interfere with the presumption of innocence;
(2) if the answer to question one was "yes", imposing a reverse burden would pursue a legitimate aim; and
(3) if the answer to question two was "yes", imposing a reverse legal burden would be a proportionate means of pursuing the aim.
THE RESPONSES
The objective limb of the defence
6.95 In Graham,[66] Lord Lane said that the burden was on the prosecution to prove that a sober person of reasonable firmness would not have responded to the threat of death or serious harm by committing the offence with which D was charged. It might be thought that reversing the burden of proof would involve D having to prove that a sober person of reasonable firmness might have responded to the threat by committing first degree murder.
6.96 However, unlike Lord Lane, we do not believe that it is helpful to speak in terms of a burden of proof in relation to the objective limb. This is because, in our view, the objective limb involves the jury undertaking "an exercise in judgment or evaluation, not the application of a burden of proof".[67] In determining the objective limb of the defence, the jury is making an assessment which is dependent upon judgement.[68] Accordingly, any recommendation that we make in relation to the burden of proof will be in relation to the qualifying conditions of the defence of duress and not in relation to the objective limb of the defence.
Burden of proof and defences
6.97 A principle of the common law is that the prosecution must prove the guilt of D.[69] At the very least, this means that the prosecution must prove beyond reasonable doubt that D satisfies all the definitional elements of the offence. In the context of murder, this means that the prosecution must prove that:
(1) D did an act which caused the death of V; and
(2) in doing the act, D intended to kill or cause or serious bodily harm to V.
6.99 In cases where D alleges that he or she killed out of self-defence, the common law says that, provided that D discharges an evidential burden, the prosecution must prove beyond reasonable doubt that D, in killing V, was not acting in self-defence. D discharges the evidential burden if there is admissible evidence suggesting the possibility that D was acting in self-defence when he or she killed V.[70] In the way that it requires the prosecution to disprove self-defence as a defence to murder, the common law treats murder in exactly the same way as it does any other offence.
Reasons for departing from the common law principle
THE PROBLEM OF DISPROVING DURESS
6.102 There is an important difference between provocation and self-defence, on the one hand, and duress, on the other hand. Lord Bingham reflected this difference when he observed in Z that the defence of duress is "peculiarly difficult for the prosecution to investigate and disprove beyond reasonable doubt."[71] In doing so, Lord Bingham was echoing what we had said in an earlier report.[72]
No analogy with provocation and self-defence
6.103 As we pointed out in 1993, in many cases of provocation and self-defence:
… the evidence of circumstances founding the defence is part and parcel of the incident during which the offence is committed; and it is therefore reasonable to expect the prosecution who have to prove the offence, also to disprove the existence of circumstances on which the defence might be founded.[73]
Duress emanating from or relating to acts outside the jurisdiction
Collaboration between criminals
6.109 The second context in which the prosecution may encounter particular difficulties in disproving duress, and where there are likely to be false claims of duress, are cases where both the person making the threat and the perpetrator of the crime are themselves loosely associated through criminal activity. In an earlier report we said that, "… members of a criminal gang might well be capable, not only individually, but in collusion, of concocting a false defence of duress."[74] The current law, of course, denies the defence of duress to gang members who make threats against one another.[75] Nevertheless, there remains a risk that D could succeed in a false claim of duress in many cases where the prosecution will be unable to prove D's voluntary membership of or association with a criminal organisation. An example would be where a former prisoner is paid by former fellow inmates to agree that he will say that he threatened them into perpetrating criminal acts.
DISTINGUISHING MURDER AND ATTEMPTED MURDER FROM OTHER OFFENCES
Article 2 of the ECHR
law. Article 2 requires not only that the state must refrain from taking life intentionally but also that appropriate steps are taken by the state to safeguard life. Where a defence, such as provocation, only has the effect of reducing murder to a lesser homicide offence, it may be argued that the state has taken appropriate steps to safeguard the life of V because D can be convicted of that lesser offence. Where a defence leads to a complete acquittal, it is the conditions in which the defence can be pleaded successfully that may have to be structured so as to satisfy the 'appropriate steps' requirement.
(1) D admits unjustifiably and intentionally killing;
(2) D is lying about the alleged duress;
(3) the jury suspects that D is lying;
(4) but the jury cannot be sure that D is lying.
The obligation under Article 2 is to provide effective measures to ensure that the substance of Article 2 is secured.[76] If those charged with murder on the basis of having unjustifiably and intentionally killed can plead duress secure in the knowledge that the prosecution are unlikely to be able to disprove the defence, then it becomes questionable whether the state is effectively discharging its obligation under Article 2.[77]
CONCLUSION
6.115 Accordingly, subject to it being compatible with Article 6(2) of the ECHR, we recommend that a person charged with first degree murder, second degree murder and attempted murder should bear the legal burden of proving the qualifying conditions of the defence on a balance of probabilities. In doing so, we are confirming the recommendation that the Commission made in 1993.[78]
Compatibility with Article 6(2) of the ECHR[79]
THE STRASBOURG JURISPRUDENCE
6.117 The leading case on article 6(2) is Salabiaku v France.[80] According to Lord Bingham,[81] the general principles which may be drawn from the Strasbourg jurisprudence are as follows:
(1) It is open to states to define the constituent elements of a criminal offence.
(2) The ECHR does not prohibit the operation of presumptions of fact or law as a matter of general principle.
(3) However, article 6(2) does not regard presumptions of fact or law with indifference. Rather, "[i]t requires states to confine them within reasonable limits which take account of the importance of what is at stake and maintain the rights of the defence."[82]
(4) The substance and effect of any presumption adverse to a defendant must be examined and found to be reasonable.
THE HOUSE OF LORDS' CASES
6.118 The leading House of Lords cases are R v DPP, ex parte Kebilene,[83] Lambert,[84] Johnstone[85] and DPP v Sheldrake; Attorney-General's Reference (No 4 of 2002) ("Sheldrake").[86] When considering whether a reverse legal burden is compatible with article 6(2), their Lordships have found that, in concert with the principles laid down in the Strasbourg Court, the presumption of innocence may be qualified provided that two conditions have been fulfilled. The first condition is that the reverse burden must be imposed in pursuance of a legitimate aim. The second is that it must be proportionate to the achievement of that aim.[87] Therefore, in deciding whether the reverse burden is compatible with article 6(2), the following three stage test should be applied:
(1) Is there an interference with the right contained in article 6(2)?
(2) Does the interference have a legitimate aim?
(3) Is the effect of the provision proportionate to the legitimate aim?
6.119 The domestic courts have rejected adopting a blanket rule as to how these criteria apply to reverse onuses. Instead the validity of a reverse onus is to be determined on an examination of all the facts and circumstances of the case.[88] If the reverse legal burden is found to be incompatible with article 6(2), the House of Lords will enquire whether it can 'read down' the burden to an evidential one, in accordance with section 3 of the Human Rights Act 1998.[89]
IS THERE AN INTERFERENCE?
6.120 On one view, there can be no interference with the presumption of innocence provided the reverse burden of proof applies only to a defence as distinct from the constituent elements of the offence itself. If nothing in the definition of the offence infringes article 6(2), then a defence that serves only to improve D's situation cannot be regarded as a violation of article 6(2). This was the position adopted by the minority in Sheldrake.[90]
… if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused…."[91]
IS THERE A LEGITIMATE AIM?
6.123 It is likely that the House of Lords would accept that avoiding the dangers of false claims of duress in relation to the murder or attempted murder of an innocent person was a legitimate legislative aim. Such claims may be difficult to disprove. There would be a clear public interest in ensuring that those who commit first degree murder, second degree murder and attempted murder should not go unpunished. Further, there is a legitimate aim in ensuring that the state complies with its obligations under Article 2 of the ECHR.[92]
IS THE INTERFERENCE PROPORTIONATE?
6.124 Proportionality is the issue on which the reverse burden of proof cases have turned. In applying the proportionality test, the question is always one of balance between the magnitude of the problem and the magnitude of the interference. In Johnstone,[93] Lord Nicholls said:
The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.[94]
We now consider the relevant factors that Lord Nicholls referred to.
The seriousness of the offence and the severity of the penalty
6.126 However, the way in which the courts have approached the partial defences to murder of diminished responsibility and killing pursuant to a suicide pact demonstrates that a reverse burden of proof can be compatible with Article 6(2) of the ECHR, even though the offence in question is the most serious of all criminal offences. When it enacted the Homicide Act 1957, Parliament created two new partial defences to murder, namely diminished responsibility and killing pursuant to a suicide pact. In each case, Parliament chose to place the burden of proving the defence on D.[95] The Court of Appeal, despite the unique stigma attached to a conviction for murder and the mandatory sentence of life imprisonment, has upheld the reverse burden of proof in relation to both partial defences.[96] For suicide pacts the Court of Appeal stated that:
… Parliament was only prepared to reduce the offence of murder to manslaughter if the survivor proved the existence of such a pact. In doing so, no doubt it had in mind the fact that in many cases the only evidence of such a pact would emanate from the survivor. As Douglas Brown J pointed out in his ruling, not only will the facts necessary to establish the defence lie within the defendant's knowledge but also the reverse legal burden provides protection for society from murder disguised as a suicide pact killing.[97]
The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution
6.129 The feature that diminished responsibility and killing pursuant to a suicide pact share is that they are defences that come into play only if the prosecution have proved the definitional elements of murder. More importantly, if the definitional elements themselves are satisfied, they reveal conduct on the part of D that amounts to the commission of the most serious of all wrongs. It will have been proved that D intended to kill or cause serious harm. This is in stark contrast to the conduct that was made criminal by section 11(1) of the Terrorism Act 2000 which was considered by the House of Lords in Sheldrake.[98] As Lord Bingham pointed out, a person who was innocent of any blameworthy conduct could fall within the terms of section 11(1).
The extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him or her as matters within his or her own knowledge or to which he or she has ready access
(1) the organisation was not proscribed on the last (or only) occasion on which he or she became a member or began to profess to be a member; and
(2) he or she had not taken any part in the activities of the organisation at any time while it was proscribed.
Terrorist organisations do not generate minutes, records or documents on which [the defendant] could rely. Other members would for obvious reasons be unlikely to come forward and testify on his behalf. If the defendant's involvement had been abroad, any evidence might also be abroad and hard to adduce. While the defendant himself could assert that he had been inactive, his evidence might well be discounted as unreliable.[99]
6.134 In Makuwa[100] the Court of Appeal recently considered whether the statutory defence granted by section 31 of the Immigration and Asylum Act 1999 placed a legal burden on D of proving the matters to which it referred and further, whether the resulting infringement of article 6(2) was justifiable as a proportionate way of achieving the legitimate objective of maintaining proper immigration controls by restricting the use of forged passports. It was held, relying on Embaye [101] (a case concerning section 2 of the Asylum and Immigration Act 2004) that a legal burden was proportionate as D alone is likely to have all of the relevant information:
In almost all cases it would be very difficult, if not impossible, for the Crown to prove that the defendant's life or freedom had not been threatened in the country from which he had come; in most cases it would be difficult, if not impossible, for the Crown to prove that he had not presented himself to the authorities in the United Kingdom without delay; in many cases it would be difficult to show that he had not shown good cause for his illegal entry or presence or that he had not made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. If the burden of the defendant were no more than to adduce sufficient evidence to raise an issue in relation to matters of that kind, the statutory provisions to which s.31 relates would be rendered largely ineffective in the case of all those who came to this country claiming a right to asylum here.[102]
[W]e recognise that a defendant may be traumatised and unable to produce documents or witnesses to support his factual claims, but the jury can be trusted to make allowances for those difficulties."[103]
The question is whether the possibility that individual cases may arise in which it is as difficult for D as for the prosecution to provide evidence about duress, should affect the choice of a general rule. We have concluded that it should not. As we have already pointed out, it must be kept in mind that if the prosecution bears the burden of proof, they must disprove duress beyond reasonable doubt, whereas if D bears the burden of proving duress, it is only on the balance of probabilities.
CONCLUSION
If however a statute were enacted which placed a burden of proof on the defendant to establish on the balance of probabilities that he acted under duress, I would not expect the courts to hold that such a provision was incompatible with article 6(2) of the ECHR. It could not be described as an intrinsic part of the offence (as is indeed exemplified by the fact that it does not currently constitute a defence at all) and it is a matter on which the defendant is well placed to provide evidence.
6.137 The American Supreme Court by a seven to two majority has recently held that the burden of proof may be placed on the accused in duress cases.[104] Justice Kennedy said:
The claim of duress in most instances depends upon conduct that takes place before the criminal act; and, as the person who allegedly coerced the defendant is often unwilling to come forward and testify, the prosecution may be without practical means of disproving the defendant's allegations. There is good reason, then to maintain the usual rule of placing the burden of production [ie evidential burden] and persuasion together on the party raising the issue.[105]
6.138 Even though he dissented, Justice Breyer conceded that "there is a practical argument that favours the Government's position here, namely that defendants should bear the burden of persuasion here because defendants often have superior access to the relevant proof."[106]
6.139 We note that in French law the burden of proving any general defence, including duress, is traditionally regarded as falling on the defendant.[107]
Burden of proof to be consistent between first degree murder and second degree murder
Children and young persons
6.142 There was not a great deal of support among consultees for a special defence or an alternative verdict to be available to children and young persons pleading duress (such as a full defence to murder). However, a number of consultees noted that youth would be a relevant factor when determining how a reasonable person might have responded to the threats.[108] Further, youth could be taken into account in sentencing.[109] One consultee also noted that the exercise of discretion on the part of the prosecuting authorities could ensure that in appropriate cases, children and young persons were not prosecuted.[110]
Complicity
6.144 Our specific recommendations on the application of the defence of duress to secondary parties to murder are contained in Part 4.[111]
Note 1 Paras 7.18 to 7.19. [Back] Note 2 Howe [1987] AC 417. [Back] Note 3 Gotts [1992] 2 AC 412. [Back] Note 4 In Abdul-Hussain [1999] Criminal Law Review 570, the Court of Appeal questioned whether duress is a defence to conspiracy. However, if duress can be a defence to doing something, it is difficult to see why it cannot also be a defence to agreeing to do something. [Back] Note 5 Z [2005] UKHL 22, [2005] 2 AC 467 at [18] by Lord Bingham. [Back] Note 6 The courts have not always accurately reflected the distinction – Martin (Colin) [1989] 1 All ER 652. [Back] Note 7 Both Smith and Hogan, Criminal Law (11th ed 2005) pp 311 to 313 and Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) pp 594 to 595 discuss whether duress can be a defence to murder before considering duress of circumstances. [Back] Note 8 In cases of duress of circumstances, the threat may, but need not, emanate from another person. In Willer (1986) 83 Cr App R 225 D pleaded duress of circumstances to a charge of reckless driving. The manner of his driving resulted from his being confronted by what he believed would be a violent attack by a gang of youths. The defence would have been equally available had he driven in the manner he did in order to escape a herd of charging bulls. [Back] Note 9 (1884) 14 QBD 273. It is true that the judgment of Lord Chief Justice Coleridge refers to “necessity” rather than duress of circumstances. Nevertheless, the case, properly analysed, is one of duress of circumstances. [Back] Note 10 [1982] 1 WLR 294. [Back] Note 12 Lord Lane had doubts as to whether a threat of serious harm should suffice. On this issue, see paras 6.73 to 6.76 below. [Back] Note 13 [1982] 1 WLR 294, 300. The reason why Lord Lane referred to “killing” is that the prosecution conceded that duress was capable of being a defence to murder. The House of Lords in Howe [1987] AC 417 has since made it clear that duress is not a defence to murder. [Back] Note 14 [2005] UKHL 22, [2005] 2 AC 467. [Back] Note 15 For the avoidance of doubt, by ’qualifying conditions’ we mean all the elements of the defence other than the requirement that a sober person of reasonable firmness might have responded in the way that that D did. [Back] Note 16 In Baker and Wilkins [1997] Criminal Law Review 497 it was held that the defence was not available where the threat related to psychological injury. [Back] Note 17 Rodger and Rose [1998] 1 Cr App R 143; Brown [2003] EWCA Crim 2637. [Back] Note 18 In Shayler [2001] EWCA Crim 1977, [2001] 1 WLR 2206 the Court of Appeal referred to “persons for whom the situation makes him responsible”. [Back] Note 19 Safi [2003] EWCA Crim 1809, [2004] 1 Cr App R 14. [Back] Note 20 In Safi [2003] EWCA 1809, [2004] 1 Cr App R 14 the Court of Appeal, without having to decide the point, seemed to favour dispensing with the requirement that the belief must be reasonably as well as honestly held. However, in Z [2005] UKHL 22, [2005] 2 AC 467 at [23] Lord Bingham was unequivocal, “But there is no warrant for relaxing the requirement that the belief must be reasonable as well as genuine”. [Back] Note 21 In Abdul-Hussain [1999] Criminal Law Review 570 the Court of Appeal suggested the threat had to be “imminent” but not “immediate”. However, in Z [2005] UKHL 22, [2005] 2 AC 467, at [28] Lord Bingham referred to the threat having to be one that D reasonably expects to follow “immediately or almost immediately”. [Back] Note 22 In Z [2005] UKHL 22, [2005] 2 AC 467 at [38] Lord Bingham, in passing, said that the defence is not available if D ought to have been aware of the risk of being subjected to any compulsion by threats of violence. On this view, it is irrelevant that D was not aware of the risk. [Back] Note 23 [1996] 2 Cr App R 157. [Back] Note 24 Specifically, the Court held that a low IQ short of mental impairment is not a relevant characteristic. [Back] Note 25 [2005] UKHL 22, [2005] 2 AC 467. [Back] Note 26 Above, at [21]. [Back] Note 28 Paras 7.3 and 7.44. [Back] Note 31 It is true that an alternative basis for convicting D of first degree murder would be that he or she foresaw that it was virtually certain that V would die. However, it has to be remembered that a finding by the jury that D foresaw death as a virtual certainty entitles but does not compel the jury to find that D intentionally killed. [Back] Note 32 Under our recommendations, D would be liable to be convicted of first degree murder if he or she was a party to a joint venture and foresaw that another party to the joint venture might commit first degree murder – see Part 4. [Back] Note 33 See paras 6.36 to 6.65. [Back] Note 34 Treacy J, Crown Prosecution Service, the Police Federation, and the Association of Chief Police Officers. [Back] Note 35 Paras 6.26 to 6.27 above. [Back] Note 36 Contrary to Offences Against the Person Act 1861, s 18. [Back] Note 37 Including Elias J, the Criminal Bar Association, the Law Society, the London Criminal Courts Solicitors’ Association and Liberty. Professor David Ormerod thought that “[t]he argument that it ought to operate as a full defence has not been adequately rebutted.” [Back] Note 38 Report on Defences of General Application (1977) Law Com No 83, para 2.43 cited with approval by the Commission in Legislating the Criminal Code: Offences against the Person and General Principles (1993) Law Com No 218, para 30.17. [Back] Note 39 Paras 6.59 to 6.65 below. [Back] Note 40 Some who subscribe to this view would go further and maintain that it should never be even a partial defence to first degree murder. [Back] Note 41 Dudley and Stephens (1884) 14 QBD 273 is an example. [Back] Note 42 [2005] UKHL 22, [2005] 2 AC 467. [Back] Note 43 Contrary to Infant Life (Preservation) Act 1929, s 1. [Back] Note 44 Contrary to Offences Against the Person Act 1861, s 58. [Back] Note 45 The scenarios are taken from Professor K J M Smith, A Modern Treatise of the Law of Criminal Complicity (1991) p 80. [Back] Note 46 Under our recommendations, death or life-threatening harm. [Back] Note 47 Under our recommendations, D would commit first degree murder not only if he or she intended to kill but also if D intended to cause serious harm aware that there was a serious risk of causing death. On one view, if D, under threat of death to others for whom he or she is responsible, does an act intended to cause serious harm but in the realisation that it carries a serious risk of causing death, his or her conduct can be characterised as justified. This is because D has acted in order to save innocent lives without intending to take life. [Back] Note 48 See our earlier report Partial Defences to Murder (2004) Law Com No 290 paras 3.28 to 3.30 [Back] Note 49 DPP for Northern Ireland v Lynch [1975] AC 653, 671, by Lord Morris. [Back] Note 50 Report on Defences of General Application (1977) Law Com No 83, para 2.16. [Back] Note 51 See n 15 above. [Back] Note 52 Ms Lumsdon, Mr Samuels and Mr Taylor. [Back] Note 53 The Criminal Bar Association and Graham Virgo. [Back] Note 54 Nicola Padfield. [Back] Note 56 A Criminal Code for England and Wales (1989) Law Com No 177, vol 2 Commentary on Draft Criminal Code Bill para 12.15; Legislating the Criminal Code: Offences against the Person and General Principles (1993) Law Com No 218, paras 29.9 to 29.10. [Back] Note 57 It is true that for a plea of self-defence to succeed, the degree of force employed by D must have been reasonable in the circumstances as he or she believed them to be. However, D’s belief in the need to resort to self-defence need only be an honest belief – Williams (Gladstone) [1987] 3 All ER 411. [Back] Note 58 Palmer v R [1971] AC 814, 832. [Back] Note 59 Graham [1982] 1 WLR 294; Howe [1987] AC 417; Z [2005] UKHL 22, [2005] 2 AC 467. [Back] Note 60 [2000] 2 Cr App R 42. [Back] Note 61 [2005] UKHL 22, [2005] 2 AC 467. [Back] Note 62 See para 6.8(2) above. [Back] Note 63 [1996] 2 Cr App R 157. [Back] Note 64 [2005] UKPC 23, [2005] 2 AC 580. [Back] Note 65 It is also consistent with the decision on relevant characteristics in relation to provocation in A-G for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580. [Back] Note 66 [1982] 1 WLR 294. [Back] Note 67 R (O) v Crown Court at Harrow [2006] UKHL 42, [2006] 3 WLR 195 at [11]. [Back] Note 68 See S [2006] EWCA Crim 756, [2006] 2 Cr App R 23 where the Court of Appeal held that the decision whether or not to stay proceedings on the grounds of abuse of process involved an exercise of judicial assessment dependent upon judgement. The Court said that it was potentially misleading to apply to the exercise of that discretion the language of burden and standard of proof. [Back] Note 69 Woolmington v DPP [1935] AC 462. [Back] Note 70 The evidential burden can be discharged by prosecution evidence. Eg, the prosecution adduce evidence of what D said when interviewed by the police. In the course of the interview, D says that he or she committed the offence as a result of being confronted by potentially lethal violence. [Back] Note 71 [2005] UKHL 22, [2005] 2 AC 467 at [20]. [Back] Note 72 Legislating the Criminal Code: Offences against the Person and General Principles (1993) Law Com No 218, para 33.6. [Back] Note 74 Above, at para 33.12. [Back] Note 75 Z [2005] UKHL 22, [2005] 2 AC 467. [Back] Note 76 Z v UK (2002) 34 EHRR 3 at [73]. [Back] Note 77 It is also true that D may kill intentionally when acting in self-defence and yet he or she bears only an evidential burden in relation to that defence, in spite of the fact that a successful plea also leads to a complete acquittal. However, cases of self-defence are different, even though there may be just as much of a risk that D is lying. The right to kill in self defence is itself protected by Article 2(2). That explains our reference to the need for an intentional killing to be unjustified if it is to raise the Article 2 point. [Back] Note 78 Legislating the Criminal Code: Offences against the Person and General Principles (1993) Law Com No 218, at para 33.16. [Back] Note 79 Article 6(2) ECHR reads:
Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. [Back] Note 80 (1991) 13 EHRR 379. [Back] Note 81 Sheldrake [2004] UKHL 43, [2005] 1 AC 264 at [12] and [21]. [Back] Note 82 Salabiaku v France (1991) 13 EHRR 379 at [28]. [Back] Note 83 [2000] 2 AC 326. [Back] Note 84 [2001] UKHL 37, [2002] 2 AC 545. [Back] Note 85 [2003] UKHL 28, [2003] 1 WLR 1736. [Back] Note 86 [2004] UKHL 43, [2005] 1 AC 264. [Back] Note 87 I Dennis, “Reverse Onuses and the Presumption of Innocence: in Search of Principle” (2005) Criminal Law Review 901, 902. [Back] Note 88 Lambert [2001] UKHL 37, [2002] 2 AC 545 at [34]; Sheldrake [2004] UKHL 43, [2005] 1 AC 264 at [21]. [Back] Note 89 The Human Rights Act 1998, s 3, reads:
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. [Back] Note 90 Lord Rodger and Lord Carswell. [Back] Note 91 [2003] UKHL 28, [2003] 1 WLR 1736, 1750 by Lord Nicholls. [Back] Note 92 See paras 6.112 to 6.115 above. [Back] Note 93 [2003] UKHL 28, [2003] 1 WLR 1736. [Back] Note 94 Above, at [50]. [Back] Note 95 Homicide Act 1957, s 2(2) in relation to diminished responsibility and s 4(2) in relation to killing pursuant to a suicide pact. [Back] Note 96 Lambert [2002] QB 1112; Attorney-General’s Reference (No 1 of 2004) [2004] EWCA Crim 1025, [2004] 1 WLR 2111. [Back] Note 97 [2004] EWCA Crim 1025, [2004] 1 WLR 2111 at [130] to [132]. The Court of Appeal’s judgment was subject to some adverse comment by Lord Bingham in Sheldrake [2004] UKHL 43, [2005] 1 AC 264 at [29] to [32]. However, Lord Bingham did not explicitly overrule the Court of Appeal on the issue of suicide pacts as it did not arise on the facts of Sheldrake. [Back] Note 98 Subject to the defence contained in s 11(2), s 11(1) makes it an offence to belong or profess to belong to a proscribed organisation. [Back] Note 99 [2004] UKHL 43, [2005] 1 AC 264 at [ 51]. [Back] Note 100 [2006] EWCA Crim 175, [2006] 2 Cr App R 11. [Back] Note 101 [2005] EWCA Crim 2865. [Back] Note 102 Makuwa [2006] EWCA Crim 175, [2006] 2 Cr App R 11 at [36] by Moore-Bick LJ. [Back] Note 103 Embaye [2005] EWCA Crim 2865 at [29]. [Back] Note 104 Dixon v US (2005) 413F 3rd 520. [Back] Note 105 Above, 2 to 3. [Back] Note 106 Above, 4. Justice Breyer goes on to contrast (as we have contrasted) the position in duress cases with the position in provocation cases. In provocation cases he says that proving an absence of passion in murder, “imposes no unique hardship on the prosecution”, citing Mullaney v Wilbur 421 US 702. [Back] Note 107 Jean Pradel, Manuel de procédure pénale, (10th ed, 2000), §380 [Back] Note 108 The Criminal Bar Association, the Law Society, Mr Graham Virgo and Justice. [Back] Note 109 Wilkie J, the Crown Prosecution Service, the Society of Labour Lawyers, Mr Samuels and Nicola Padfield. [Back]
