United Kingdom House of Lords Decisions

HOUSE OF LORDS

Date: 12 March 1975

	DIRECTOR OF PUBLIC PROSECUTIONS FOR NORTHERN IRELAND	(RESPONDENT)
	v.
	LYNCH	(APPELLANT)

Lord Morris of Borth-y-Gest
Lord Wilberforce
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Edmund-Davies

Lord Morris of Borth-y-Gest

My Lords,

The Appellant was charged, together with two others named Bates and Whelan, with having, on the 28th January 1972, murdered one Raymond Norman Carroll who was a police constable. The killing took place in Belfast. The trial, which was before a learned judge and a jury, began on the 12th June 1972 and concluded on the 20th June 1972. On that latter date the jury returned unanimous verdicts of Guilty against the Appellant and against Bates. They were sentenced to life imprisonment. Whelan, who was said by the Prosecution to have been an accessory before the fact, was acquitted at the close of the case for the Crown.
The case against the Appellant was that he was a principal in the second degree. He had not done any of the actual shooting which killed the police constable. The case against him was that he had aided and abetted the killing. The learned judge in his summing-up gave careful directions to the jury as to what has to be proved before an accused person can be found guilty of murder by having aided and abetted. Save as to one matter to which I will later refer it was not submitted in this House that the directions given were erroneous and we were not invited to consider them. The main contention of the Appellant and one of the main lines of his defence at the trial was that all that he had done had been done under duress and that he was entitled to be acquitted.
The course followed at the trial was that the evidence was given, and was not excluded, which could form the factual basis upon which the plea of acting under duress could be presented. The Appellant himself gave evidence. When all the evidence in the case was concluded submissions in law were made to the learned judge, in the absence of the jury, in regard to the applicability of duress as a defence in the case of one charged with murder as a principal in the second degree. The learned judge ruled for reasons which he gave that in such a case the defence of duress was not available. He therefore withdrew from the jury the question whether the Appellant had been compelled by duress to participate in the events which culminated in the shooting of Police Constable Carroll. It followed that if duress was not available as a defence there was no need for the learned judge to consider or to discuss or to direct the jury as to certain aspects of the matter that might upon the footing of its availability have become relevant. Where duress is in issue many questions may arise such as whether threats are serious and compelling or whether (as on the facts of the present case may specially call for consideration) a person the subject of duress could reasonably have extricated himself or could have sought protection or had what has been called a "safe avenue of escape ". Other questions may. arise such as whether a person is only under duress as a result of being in voluntary association with those whom he knew would require some course of action. In the present case, as duress was not left to the jury, we naturally do not know what they thought of it all.
It was not in contest that if in a criminal case a defence of duress is open, and if as an issue it is raised, the burden of proof which rests upon the prosecution then includes the burden of proving that the accused did not act under duress.
The Appellant appealed to the Court of Criminal Appeal. He appealed on four grounds. Of the two which were pursued the first was that the learned judge was wrong in law and misdirected the jury by telling them that duress cannot be a defence to murder. The second, which is not before us, was that there had been misdirection on a question of corroboration. The appeal was heard by the Lord Chief Justice, Curran L.J. and O'Donnell J. On the 27th June 1974 the appeal was dismissed. In a reasoned judgment containing a valuable review of decided cases, the Lord Chief Justice set out the conclusions (shared by all three members of the court) which led them to hold that duress cannot be accepted as a defence to murder. In giving judgment the court recorded that they had given consideration to one aspect of the case that had not been argued. It raised a point concerning the intention which must be proved before there can be a conviction of aiding and abetting. On this one point O'Donnell J. delivered a dissenting opinion.
The court certified that two points of law of general public importance were involved in their decision. The second related to the aspect of the case above mentioned. The court gave leave to appeal. The two points are as follows: -

" (1) On a charge of murder is the defence of duress open to a person who is accused as a principal in the second degree (aider and abettor)?

(2) Where a person charged with murder as an aider and abettor is shown to have intentionally done an act which assists in the commission of the murder with knowledge that the probable result of his act, combined with the acts of those whom his act is assisting, will be the death or serious bodily injury of another, is his guilt thereby established without the necessity of proving his willingness to participate in the crime?".

The facts as described or asserted by the Appellant can be briefly summarised. Many of them had been set out in a signed statement which he had made to the Police. He said that while at his house he had received a message that one Sean Meehan required his presence. It was in the forefront of his case that Sean Meehan was and was known to be both a member of the I.R.A. and a ruthless gunman. The Appellant had not previously known Meehan personally but had known of him. He said that what Meehan asked to be done had to be done. "You have no other option. I firmly believe that I would have been shot for defying him". So he went with the messenger to an address in Belfast and there saw Meehan and two other men. Meehan, he said, had a rifle in his hand. After it was learned that the Appellant could drive a car he was told to go with another man named Mailey (who had a small automatic gun) and seize a car. They went away. Mailey held up a car and ordered its driver to get out. The Appellant was told to drive the car to the address where Meehan had remained. The Appellant did so. He parked the car and was told that he would not be doing any more driving. So he returned to his own house. Some half-hour later the messenger returned and told the Appellant that Meehan wanted him. He went to the same house as before. Meehan, Bates, Mailey and another man were there. Meehan who had a rifle told the Appellant that he was to drive the car which he then did after Mailey (who had a gun in his pocket) had got in beside him and after Bates and Meehan had got into the back. Meehan, Bates and Mailey had combat jackets and balaclava helmets. The Appellant was told to go to a particular road. He asked Meehan what he was going to do and was told: "Bates" knows a Policeman ". Following directions given to him he drove past a garage (at which point Bates said: " That's him ") and then stopped near to the garage. Meehan told him to stay there. The other three pulled up their woollen helmets and left the car and ran across the road. Then there were a number of shots fired in quick succession. The three men came running back to the car and got into it. The Appellant was told to drive on -which he did. They returned to their starting point.
Witnesses gave evidence that the three men who got out of the car driven by the Appellant moved swiftly towards the service bay of the garage where Constable Carroll was doing work on his own car: that shots were fired: that the constable was fatally wounded: that the three men made off towards the waiting car which was then driven away.
The learned judge directed the jury fully in regard to the matters which the Prosecution had to prove. I need not refer to them or elaborate them. It is sufficient for present purposes to proceed on the basis or assumption that the verdict of the jury shows that they were satisfied that the Appellant participated actively in an enterprise with knowledge that death or serious injury was intended by those whom he accompanied to be its outcome.
So the question presents itself whether the issue of duress should have been left to the jury. If on the facts the conclusion could be that the Appellant only participated to the extent that he did because he was forced to participate should he be held guilty? There are two aspects of the question, viz., (a) whether there was evidence upon which it would be open to a jury to say that there was duress and (b) if there was, and if a jury considered that there had been duress, whether duress can avail as a defence to a charge which is presented as a charge of murder.
It is important to remember that in this case we are concerned with an alleged principal in the second degree, and that the particular points of law which are raised are framed in reference to an aider and abettor. We are concerned with duress in the form of threats (either expressly made or by conduct indicated) to kill the person threatened or to cause serious personal physical injury to him. I limit my decision to the facts of the present case. The view of the learned judge at the trial was that duress is not available as a defence to a charge of murder: he considered that he was precluded by the weight of authority from holding that it could be and, furthermore, he concluded that the defence was no more available in the case of a principal in the second degree than in the case of a principal in the first degree.
Counsel for the Crown indicated that they would have been prepared to embark before us upon an examination of the evidence with a view to making a submission that the evidence did not have the weight which would warrant a finding that there was duress: they would then have submitted that in any event there could be an application of the proviso. The Court of Appeal have however held, as expressly stated in their judgment, that there was on the facts a clear issue as to duress. In view of this it would in my view have been quite inappropriate for us to go beyond the issues of law which are raised. At the same time it is to be remembered, as I have indicated, that the facts as to duress have not been considered by the jury and that because the learned judge withdrew the issue he naturally found it unnecessary to deal with various questions which would have been or might have been most pertinent had the matter been left for the consideration of the jury.
In a series of decisions and over a period of time courts have recognised that there can be circumstances in which duress is a defence. In examining them and more particularly in approaching the issue raised in this appeal the question naturally presents itself - why and on what basis can duress be raised? If someone acts under duress - does he intend what he does? Does he lack what in our criminal law is called mens rea? If what he does amounts to a criminal offence ought he to be convicted but be allowed in mercy and in mitigation to be absolved or relieved from some or all of the possible consequences?
The answer that I would give to these questions is that it is proper that any rational system of law should take fully into account the standards of honest and reasonable men. By those standards it is fair that actions and re-actions may be tested. If then someone is really threatened with death or serious injury unless he does what he is told to do is the law to pay no heed to the miserable agonising plight of such a person? For the law to understand not only how the timid but also the stalwart may in a moment of crisis behave is not to make the law weak but to make it just. In the calm of the court-room measures of fortitude or of heroic behaviour are surely not to be demanded when they could not in moments for decision reasonably have been expected even of the resolute and the well-disposed.
In posing the case where someone is "really" threatened I use the word "really" in order to emphasise that duress must never be allowed to be the easy answer of those who can devise no other explanation of their conduct nor of those who readily could have avoided the dominance of threats nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant. Where duress becomes an issue courts and juries will surely consider the facts with care and discernment.
In my view the law has recognised that there can be situations in which duress can be put forward as a defence. Someone who acts under duress may have a moment of time, even one of the utmost brevity, within which he decides whether he will or will not submit to a threat. There may consciously or subconsciously be a hurried process of balancing the consequences of disobedience against the gravity or the wickedness of the action that is required. The result will be that what is done will be done most unwillingly but yet intentionally. Terminology may not however much matter. The authorities show that in some circumstances duress may excuse and may therefore be set up as a special defence.
A tenable view might be that duress should never be regarded as furnishing an excuse from guilt but only where established as providing reasons why after conviction a court could mitigate its consequences or absolve from punishment. Some writers including Stephen (see Vol. II - History of Criminal Law of England p. 107-8) have so thought. It is however much too late in the day, having regard to the lines of authority, to adopt any such view. But apart from this - would such an approach be just? I think not. It is said that if duress could not be set up as a defence there would be difficulties in the way of bringing evidence of the relevant facts and circumstances before the court. I am not greatly impressed by this. A judge could ensure that after a conviction full opportunity would be given to adduce all material evidence. If however what a person has done was only done because he acted under the compulsion of a threat of death or of serious bodily injury it would not in my view be just that the stigma of a conviction should be cast on him. As Blackstone put it (Vol. 4, p. 23):

"it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion."

The law must, I think, take a commonsense view. If someone is forced at gun-point either to be inactive or to do something positive - must the law not remember that the instinct and perhaps the duty of self-preservation is powerful and natural? I think it must. A man who is attacked is allowed within reason to take necessary steps to defend himself. The law would be censorious and inhumane which did not recognise the appalling plight of a person who perhaps suddenly finds his life in jeopardy unless he submits and obeys.
The issue in the present case is therefore whether there is any reason why the defence of duress, which in respect of a variety of offences has been recognised as a possible defence, may not also be a possible defence on a charge of being a principal in the second degree to murder. I would confine my decision to that issue. It may be that the law must deny such a defence to an actual killer, and that the law will not be irrational if it does so.
Though it is not possible for the law always to be worked out on coldly logical lines there may be manifest factual differences and contrasts between the situation of an aider and abettor to a killing and that of the actual killer. Let two situations be supposed. In each let it be supposed that there is a real and effective threat of death. In one a person is required under such duress to drive a car to a place or to carry a gun to a place with knowledge that at such place it is planned that X is to be killed by those who are imposing their will. In the other situation let it be supposed that a person under such duress is told that he himself must there and then kill X. In either situation there is a terrible agonising choice of evils. In the former to save his life the person drives the car, or carries the gun. He may cling to the hope that perhaps X will not be found at the place or that there will be a change of intention before the purpose is carried out, or that in some unforeseen way the dire event of a killing will be averted. The final and fatal moment of decision has not arrived. He saves his own life at a time when the loss of another life is not a certainty. In the second (if indeed it is a situation likely to arise) the person is told that to save his life he himself must personally there and then take an innocent life. It is for him to pull the trigger or otherwise personally to do the act of killing. There, I think, before allowing duress as a defence it may be that the law will have to call a halt. May there still be force in what long ago was said by Hale?

" Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact: for he ought rather to die himself, than kill an innocent." (See Hale - Pleas of the Crown, Vol. 1, p. 50).

Those words have over long periods of time influenced both thought and writing but I think that their application may have been unduly extended when it is assumed that they were intended to cover all cases of accessories and aiders and abettors.
Writers on criminal law have generally recorded that whatever may be the extent to which the law has recognised duress as a defence it has not been recognised as a defence to a charge of murder (See Russell on Crime 12th. Ed. p. 90: Kenny - Outlines of Criminal Law - 19th. Ed. p. 70: Criminal Law - Glanville Williams - 2nd. Ed. 1961 p. 759; Criminal Law - Smith & Hogan - 3rd. Ed. p. 164-8).
It may be a matter for consideration whether the offences of being accessory before the fact to murder and of aiding and abetting murder might not be constituted as separate offences involving a liability to the imposition of life imprisonment but not as a mandatory sentence.
I fully appreciate that, particularly at the present time, situations may arise where the facts will be much less direct and straightforward than those which, as examples, I have described. I see no advantage in giving illustrations of them. They will be situations presenting greater difficulties of fact than those presented in the present case. But where there have been threats of the nature that really have compelled a person to act in a particular way and he has only acted because of them I think that the approach of the law should be to recognise that the person may be excused in the cases that I have supposed.
It is most undesirable that in the administration of our criminal law cases should arise in which, if there is a prosecution leading to a conviction, a just conclusion will only be attained by an exercise thereafter of the prerogative of granting a pardon. I would regret it, therefore, if upon an application of legal principles such cases could arise. Such principles and such approach as will prevent them from arising would seem to me to be more soundly based.
I do not propose to refer to all the cases which were most helpfully cited to us. They show the range of the offences in respect of which it has been accepted that duress is a possible defence. In some of the cases obiter dicta are to be found as to the exceptions to the general rule. Treason and murder have been said to be possible exceptions. Yet as to treason such cases as Oldcastle's case (which was in 1419 - see Hale, Pleas of the Crown, Vol. 1, p. 50) or MacGrowther's case (Foster's Reports, p. 13) or Stratton's case (in 1779, 1 Dougl. (K.B.) 239) or R. v. Purdy (in 1946 - 10 J.Cr.L. 182) show that in some circumstances the defence may avail.
In R. v. Crutchley in 1831, 5 Car. & P. 133, where the charge was of breaking a threshing machine, evidence was given that the accused had against his will been compelled to join a mob from which he ran away at the first opportunity: he was acquitted.
I do not find much assistance in the report of the case R. v. Tyler & Price 8 Car. & P. 616. Though the two accused took part in the killing of the deceased and though they urged that they were induced from a fear of personal violence to themselves to join and to continue with Thorn, who was a religious fanatic of unsound mind, there are many indications which suggest that in company with very many others they had joined Thorn's assemblage because they were attracted by the claims and promises that he made. It would seemingly have been easy for them to detach themselves. It was against such a background that Lord Denman C.J. in summing-up is reported to have said that the law was "that no man, from a fear of" consequences to himself, has a fight to make himself a party to committing "mischief on mankind." Without analysing the expressions used it would not be appropriate to treat what was said as being a comprehensive statement of principle.
In A.-G. v. Whelan [1934] IR 518 there was a charge of receiving goods knowing them to have been stolen. A special question was left to the jury as follows: -

"In receiving the money did Peter Whelan act under threat of immediate death or serious violence? "

The jury answered - " Yes ". The trial judge then held that duress was not a defence but went in mitigation of punishment. On the basis that there was a conviction he passed a suspensory sentence. On appeal to the Court of Criminal Appeal it was held that the conviction should be quashed and a verdict of acquittal entered. Murnaghan J. delivering the judgment of the court said the matter had to be approached from the standpoint of general principle.

"It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal.

The court went on to say, obiter, that the general rule was subject to limitations, and that:

" the commission of murder is a crime so heinous that murder should not be committed even for the price of life "

so that even the strongest duress would not be a justification. There was an indication that there might be other heinous crimes within the same category. No consideration was however given to the position in a murder charge of a principal in the second degree. The court added that where the "excuse" of duress applied (and perhaps their word "excuse" was happier than their word "justification") it must be the case that:

" the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats."

In the case of R. v. Gill [1963] 1 W.L.R. 841, it was recognised in the Court of Criminal Appeal that duress could be a defence where there were charges of conspiracy to steal and larceny. The defence had been left to the jury who had convicted. On appeal what came under consideration was the way in which the jury had been directed. The court gave a clear ruling as to the onus of proof resting upon the prosecution. In dealing with that matter the court referred with approval to what had been said in an unreported case, Reg. v. Shiartos in 1961, where the charge was one of arson and where Lawton J. had told the jury that if what the accused did -

"he did at pistol point and in fear of his life, he is entitled to be acquitted."

Among those who were charged when, in respect of two murders, Kray and others came up for trial in 1969 (see Vol. 53, Criminal Appeal Reports 569) was a man Anthony Barry. The case against him was that he was an accessory before the fact to one of the murders and the Crown relied primarily on his having carried a gun from one place to another knowing that one of the accused (who was convicted of murder) intended to use it in a projected murder. Barry admitted that he had carried a gun but said that it was a gun that would not work and which was not the instrument of the killing that took place ; but further us to whatever he did he pleaded that he had acted under duress being in fear for the safety of himself and his family if he failed to carry out what he was ordered to do. It was accepted by Counsel concerned that duress could be a defence in the case of one charged with being an accessory before the fact to murder. Barry gave evidence of threats and other evidence was given. Barry was acquitted. On appeal by those who were convicted one contention was that a joint trial of several persons in respect of two murders had been wrongly ordered. The evidence given in laying the foundation of Barry's defence of duress had been, in the nature of things, damaging to other accused. On behalf of one of them the line of argument was as follows: - duress (though not available in murder to a person charged as a principal) is available to one charged as an accessory provided that there was no alternative to submission to the threats and that Barry had had such an alternative and so had no viable defence of duress: the result was that evidence which was prejudicial to other accused had been wrongly allowed. On behalf of another accused it was accepted that Barry's line of defence was open to him and that evidence in support of it could be given, but it was contended that the evidence that had been given exceeded the limits that could be allowed. In the course of giving reasons why those contentions failed, Widgery L.J. said in the Court of Appeal (see p. 578) -

" We are further satisfied that Barry had a viable defence on the basis left to the fury by the learned Judge, namely, that by reason of threats he was so terrified that he ceased to be an independent actor, and that the evidence of violent conduct by the Krays which Barry put before the Court was accordingly relevant and admissible."

I think that the learned Judge in that case did direct the jury on the basis that if Barry acted under the compulsion of effective threats the result would be that he would cease to be an independent actor for the reason that he would have no independent will of his own. There was no occasion in that case to have sustained legal argument or analysis as to whether this would mean that there should be an acquittal because there was no mens rea or whether it would mean that duress if it existed was a special defence which could result in an acquittal.
A later English case was that of R. v. Hudson and Taylor [19711 2 Q.B. 202. Two girls, one aged 19 and the other 17, when charged with perjury, admitted that they had given false evidence in earlier court proceedings but said that they had decided so to do because of threats that had been made to them. When they had arrived in court on the earlier occasion their previously formed resolve to tell lies was strengthened when they saw in court one of those who had threatened them. It might well be thought that when someone was actually in a court of law in order to give evidence and was in the presence of judge and jury, with police in attendance in the court, there would be opportunity to seek protection from the influence and effect of previous threats. That line of thought evidently weighed with the judge at the perjury trial for he directed the jury (who convicted the two girls) that in the circumstances the defence of duress did not avail. That ruling, however, as was held in the Court of Appeal, was not correct. The convictions were quashed. The matter should have been left to the jury. The Court of Appeal pointed out that -

"... it is always open to the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective, and that upon this being established the threat in question can no longer be relied upon by the defence. In deciding whether such an opportunity was reasonably open to the accused the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon."

As the defence had not been left to the jury it is impossible to know what the jury would have thought of it. The case merely decides that the Judge at the perjury trial -

" should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence."

Though reference was there made to the will of the appellants being "over-" borne " I do not think that this involved the question whether they did or did not intend to tell lies. They had deliberately decided before they went to the first court that they would do so. They intended to do so. The issue for the jury in the perjury case would have been whether the threats were so real and were at the relevant time so operative and their effect so incapable of avoidance that having regard to all the circumstances the conduct of the girls could be excused.
It is not without interest to note that in the judgment of the Court in Hudson's case (which was prepared by Widgery L.J. who had delivered the judgment in Kray's case) the view was expressed (see p. 206) that it was clearly established that duress provides a defence in all cases subject only to two possible exceptions, viz., (a) possibly not in the case of treason, and (b) possibly not in the case of " murder as a principal ". The actions of Barry in the Kray case as an accessory before the fact would not seem to differ very materially from the actions of the Appellant in the present case as one who aided and abetted.
I see no reason to question the law as laid down in The Queen v. Dudley and Stephens L.R. 14 QBD 273, the authority of which will in my view be in no way disturbed if duress is held to be a possible defence in the case of someone charged with having aided and abetted the commission of murder.
We were referred to many other decisions. The decision of the Privy Council in Subramania v. Public Prosecutor [1956] 1 WLR 965, in an appeal from the Supreme Court of the Federation of Malaya, turned upon the rejection of evidence relating to questions of duress that were governed by provisions in the Penal Code and in Emergency Regulations. The charge in that case concerned the unlawful possession of ammunition. In another Privy Council case - Sephakela v. The Queen ([1954] High Commission Territories Law Reports 60) - questions were raised in regard to compulsion being a defence in a case of murder. The actual decision of the Board was that the evidence fell short of what was necessary in law to establish such a defence. There was no suggestion that compulsion could never be a defence. But having regard to the state of the evidence no occasion arose for the Board to enter upon a full examination of principle.
In the Quebec case of R. v. Farduto [1912] 10 DLR 669 the result was determined by the application of sections of the criminal code. One section provided that a person was a party to and guilty of an offence who did an act for the purpose of aiding a person to commit the offence. The accused had a razor: P. threatened the accused that he would be shot unless he gave his razor to him (P):, the accused did so: P. used it in killing someone then present. So under the section above referred to the accused was charged with murder. Had he a defence? The answer was no: another section of the Code while providing that compulsion by threats of immediate death or grievous bodily harm could be "an excuse" made exceptions in the case of a number of offences which included murder, piracy, attempting to murder, assisting in rape, robbery, causing grievous bodily harm and arson. That section of the Code was said to stem from the report of the Royal Commissioners in England which seemed to proceed on the basis that duress ought not to be allowed as a defence in the case of crimes of a heinous character. A consideration of the case last referred to leads me to the view that it could not be just to lay it down that in no circumstances, whatever they were, could duress ever be a defence to a charge of aiding and abetting a murder.
We were referred to the provisions contained in certain other criminal codes. In some of these, while it is laid down that a person is exempted from responsibility if he commits an offence under the compulsion of threats of death Or of grievous bodily harm, the provisions are made inapplicable in regard to certain offences including that of murder. Some of these codes though enacted at varying dates are based upon suggestions made in this country nearly a century ago. Where there is no operative legislative enactment I do not think that the vital force of the common law need be anchored to the thoughts which may then have been expressed.
We were referred to the provisions of section 37 of the Criminal Justice Act (Northern Ireland) 1945 which gives a defence to a wife who proves that she acted in the presence of and under the coercion of her husband but which make an exception of murder and treason: the question arises whether an indication is given that Parliament regarded the analogous defence of duress as never being available in the case of these two crimes. But surmise as to what may have been thought in 1945 cannot yield us any positive answer to our present problem and ought not to compel us to give any particular answer. Nor can we know whether the separate position of aiders and abettors was specially considered.
A recent case of much interest is that of R. v. Brown and Morley in South Australia in 1968 ((1968) S.A.S.R. 467). Morley killed a lady and the case against Brown was that he was a principal in the second degree since though he was not present in the room where the killing took place he had taken part in planning the killing and had rendered some surprisingly minor assistance to disguise the noise that Morley might make in approaching the room. Brown as well as Morley was convicted. Brown's case was that all that he did was done under duress by reason of threats made to him by Morley. The majority of the Supreme Court in dismissing the appeal considered that duress did not excuse Brown for any acts which constituted taking an active part in an arrangement for the killing of the lady. The Chief Justice (Bray C.J.) dissented. In a closely reasoned judgment the persuasive power of which appeals to me he held that it was wrong to say that no type of duress can ever afford a defence to any type of complicity in murder though he drew a line of limitation when he said -

" I repeat also that as at present advised I do not think duress could constitute a defence to one who actually kills or attempts to kill the victim."

Another case which repays study is that of Goliath [1972 (3)] South African Law Reports.
Having regard to the authorities to which I have referred it seems to me to have been firmly held by our courts in this country that duress can afford a defence in criminal cases. A recent pronouncement was that in the Court of Appeal in 1971 in the case above referred to (R. v. Hudson [1971] 2 QB 202). The Court stated that they had been referred to a large number of authorities and to the views of writers of text books. In the judgment of the Court delivered by Lord Parker C.J. and prepared by Widgery L.J. the conclusion was expressed (at p. 206) that

"... it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal.)"

We are only concerned in this case to say whether duress could be a possible defence open to Lynch who was charged with being an aider and abettor. Relying on the help given in the authorities we must decide this as a matter of principle. I consider that duress in such a case can be open as a possible defence. Both general reasoning and the requirements of justice lead me to this conclusion.
The second certified point of law would seem on a first study of it to raise questions closely allied to those raised under the first: that would appear to be so when the question of the necessity to prove "willingness" to participate is raised. In regard to the matters discussed in the judgments on this second point I am content to say that I am in general agreement with the conclusion reached by the majority as expressed in the judgment of the Lord Chief Justice. The words "aid" and "abet" are, I think, synonymous. If in the present case the jury were satisfied that the car was driven towards the garage in pursuance of a murderous plan and that the Appellant knew that that was the plan and intentionally drove the car in execution of that plan he could be held to have aided and abetted even though he regretted the plan or indeed was horrified by it. However great his reluctance he would have intended to aid and abet. But if that intention and all that he did only came about because of the compulsion of duress of the nature that I have described he would, in my view, have a defence.
The question arises as to what is the proper course to follow. The Appellant did not have the opportunity of having his defence of duress considered. I think that he should have it. His conviction should be quashed but having regard to all the circumstances I consider that the interests of justice require that there should be a re-trail. I would remit the case to the Court of Criminal Appeal to make the appropriate order.
I would allow the appeal accordingly.

Lord Wilberforce

My Lords,

The Appellant has been convicted, after a joint trial with two other persons before a judge and jury, of the murder of a police constable in Belfast. He was sentenced to life imprisonment. The case against him, which the jury must have accepted, was that he drove three men equipped with arms, combat jackets and balaclava helmets, in a car to a place near where the constable was stationed: that the three men left the car and shot the constable, after which they returned to the car and were driven away by the Appellant. The Appellant had previously been summoned by messenger to a back room where the three men were, one armed with a rifle and another with an automatic gun. There he was given orders, first to "hi-jack" a car, which together with an armed man he did, and later to drive it. The charge was treated at the trial as one of aiding and abetting and the jury was accordingly directed to consider whether the Appellant was aware of the nature of the enterprise and knew that death or violence was likely to be the outcome. They must be taken to have found that he did.
One of the men in the room and in the car was Sean Meehan, as to whom evidence was given that he was a well-known and ruthless gunman. The Appellant and one of the two persons accused with him, William Bates, gave evidence that Meehan was the kind of person whom it would be perilous to disobey and who, on the occasion in question, gave his instructions to them in a manner which indicated that he would tolerate no disobedience. Both the Appellant and Bates testified to their fear of Meehan and their clear view that disobedience of his instructions would cause them to be shot.
The trial judge, after hearing argument, decided not to leave to the jury the question whether the Appellant had been compelled by duress to participate in the events which led to the shooting. He took the view that as a matter of law a defence of duress is not available on a charge of murder. The Court of Criminal Appeal upheld this decision; O'Connell J. dissented to the extent that, in his opinion, the defence of duress is admissible when the charge is one of aiding and abetting. Thus the Appellant has been denied the opportunity of having a defence based on duress considered by the jury.
It is clear that a possible case of duress, on the facts, could have been made. I say " a possible case" because there were a number of matters which the jury would have had to consider if this defence had been left to them. Among these would have been whether Meehan, though uttering no express threats of death or serious injury, impliedly did so in such a way as to put the Appellant in fear of death or serious injury; whether, if so, the threats continued to operate throughout the enterprise; whether the Appellant had voluntarily exposed himself to a situation in which threats might be used against him if he did not participate in a criminal enterprise (the Appellant denied that he had done so); whether the Appellant had taken every opportunity open to him to escape from the situation of duress.
In order to test the validity of the judge's decision to exclude this defence, we must assume on this appeal that these matters would have been decided in favour of the Appellant.
What then, does exclusion of the defence involve? It means that a person, assumedly not himself a member of a terrorist group, summoned from his home, with explicit or implied threats of death or serious injury at gunpoint, to drive armed men on what he finds to be a criminal enterprise, having no opportunity to escape, but with the certainty of being shot if he resists or tries to get away, is liable to be convicted of murder. The same would be true of a bystander in a street, or an owner of a car, similarly conscripted, once it is shown that he, or she, knew the nature of the enterprise. One may multiply examples of the possible involvement of persons, whom the normal man would regard as without guilt, under threats of death or violence, in violent enterprises - examples unfortunately far from fanciful at this time. Does the law require all these to be charged with murder and call for their conviction? It would be our duty to accept such a law if it existed, but we are also entitled to see if it does.
Does then the law forbid admission of a defence of duress on a charge of murder whether as a principal in the first degree or as a principal in the second degree or as necessary. Consistently with the method normal in the development of the common law, an answer to this question must be sought in authority, and in the principles upon which established authority is based. I look first at the principle. The principle upon which duress is admitted as a defence is not easy to state. Professor Glanville Williams indeed doubts whether duress fits in to any accepted theory: it may, in his view, stand by itself altogether outside the definition of will and act. The reason for this is historical. Duress emerged very early in our law as a fact of which account has to be taken, particularly in times of civil strife where charges of treason were the normal consequence of defeat, long before the criminal law had worked out a consistent or any theory of "mens rea" or intention. At the present time, whatever the ultimate analysis in jurisprudence may be, the best opinion, as reflected in decisions of judges and in writers, seems to be that duress per minas is something which is superimposed upon the other ingredients which by themselves would make up an offence, i.e., upon act and intention " Coactus volui" sums up the combination: the victim completes the act and knows that he is doing so; but the addition of the element of duress prevents the law from treating what he has done as a crime. One may note - and the comparison is satisfactory - that an analogous result is achieved in a civil law context: duress does not destroy the will - for example, to enter into a contract - but prevents the law from accepting what has happened as a contract valid in law - see the Privy Council case of Barton v. Armstrong No. 15 of 1972 and the judgments in the Supreme Court of New South Wales.
If then it is correct that duress is an additional element which comes into play, and excuses, after act and intention have been manifested, it follows that analysis of "intention" in the criminal law will not of itself assist in determining the scope of the defence of duress. The most recent and probably the most profound analysis of the element of "intention" in relation to murder are to be found in the opinions in this House in the case of Hyam ([1974] 2 W.L.R. 607) and these were much cited in argument. But they do not help us here. Whatever she did, or intended, Mrs. Hyam did voluntarily and willingly. The analysis of her conduct and mental state must have been different if a gunman with a loaded weapon had been behind her and dictating her action. Correspondingly, in a case such as the present, where duress may be involved, to invite a jury to make their decision merely on the Appellant's intention, as that word is used in Hyam, is to stop halfway and to omit a vital ingredient in his action. In the Hyam sense he may have had the necessary intention to involve him as an aider and abettor but his intention may have been produced by threats which he could not resist.
I referred above to judicial decisions: it is certainly the case that, in recent years, and subsequently to Stephen's History of the Criminal Law of England (and in spite of that eminent author's views) the defence of duress has been judicially admitted in relation to a variety of crimes: inter alia, treason, receiving, stealing, malicious damage, arson, perjury. In all of these crimes there would have to be proved, in addition to an actus reus, an element of intention. Yet this defence has been admitted. This makes it clear beyond doubt, to my mind, that if the defence is to be denied in relation to murder, that cannot be because the crime of murder - as distinct from other crimes - involves the presence of intention: it must be so for some other reason. If the proposition is correct at all that duress prevents what would otherwise constitute a crime for attracting criminal responsibility, then that should be correct whatever the crime.
What reason then can there be for excepting murder? One may say - as some authorities do (c.f. Attorney-General v. Whelan [1934] IR 518, 526 per Murnaghan J., Regina v. Hurley and Murray [1967] V.L.R. 526, 543 per Smith J.) that murder is the most heinous of crimes: so it may be, and in some circumstances, a defence of duress in relation to it should be correspondingly hard to establish. Indeed, to justify the deliberate killing by one's own hand of another human being may be something that no pressure or threat even to one's own life which can be imagined can justify - no such case ever seems to have reached the courts. But if one accepts the test of heinousness, this does not, in my opinion, involve that all cases of what is murder in law must be treated in the same way. Heinousness is a word of degree, and that there are lesser degrees of heinousness, even of involvement in homicide, seems beyond doubt. An accessory before the fact, or an aided or abettor, may (not necessarily must) bear a less degree of guilt than the actual killer - and even if the rule of exclusion is absolute, or nearly so in relation to the latter, it need not be so in lesser cases. Nobody would dispute that the greater the degree of heinousness of the crime, the greater and less resistible must be the degree of pressure, if pressure is to excuse. Questions of this kind where it is necessary to weigh the pressures acting upon a man against the gravity of the act he commits are common enough in the criminal law, for example with regard to provocation and self-defence: their difficulty is not a reason for a total rejection of the defence . To say that the defence may be admitted in relation to some degrees of murder, but that its admission in cases of direct killing by a first degree principal is likely to be attended by such great difficulty as almost to justify a ruling that the defence is not available, is not illogical. It simply involves the recognition that by sufficiently adding to the degrees, one may approach an absolute position.
So I find no convincing reason, on principle, why, if a defence of duress in the criminal law exists at all, it should be absolutely excluded in murder charges whatever the nature of the charge; hard to establish, yes, in case of direct killing so hard that perhaps it will never be proved: but in other cases to be judged, strictly indeed, on the totality of facts. Exclusion, if not abri-trary, must be based either on authority or policy. I shall deal with each.
As to authority, this has been fully examined by others of your Lordships and I shall not duplicate the process. The stream is reasonably clear if not deep. I do not think it open to controversy

(i) that a defence of duress is known to English law and has been so known since the 14th century. (In one form or another it seems to be admitted in all common law and civil law jurisdictions.):

(ii) that the defence is admitted in English law as absolving from guilt, not as diminishing responsibility or as merely mitigating the punishment. Some authors do indeed suggest the latter, at least in relation to homicide (c.f. East's Please of the Crown [1803] p. 225) and there may be a case (not an unanswerable case) for saying, generally, that this ought to be the law. It clearly, however, is not the law and, particularly where sentence is mandatory, whether of death or life imprisonment, Parliamentary action would be necessary if proof of duress were to operate upon the sentence. It would also be necessary if duress were to be admitted as diminishing responsibility :

(iii) that there is no direct English judicial authority against its application to charges of murder.

There is the judgment of Lord Coleridge in the "necessity" case of Reg. v. Dudley and Stephens [1885] 14 Q.B.D. 273: there are obiter dicta (A.G. v. Whelan (1934) IR 518, 526; R. v. Steane [1947] 1 K.B. 997, 1005; R. v. Bourne 36 Cr. App. R. 125, 128, some of eminent judges, in favour of exclusion, but these follow the writers, who in turn follow Hale. That great writer - and the same is true of Stephen - would recognise that legal thought and practice has moved far since his time. Indeed, it is significant that the reason he gives for excluding the defence of duress to charges of treason, murder or robbery is that " the law has provided a sufficient remedy against such fears by applying himself to the courts and officers of justice for a writ or precept de securitate pacis." (Hale, Pleas of the Crown 50). Even if this argument was ever realistic, he would surely have recognised that reconsideration of it must be required in troubled times. That the defence may be admissible in cases of murder other than as a principal was indicated by the Court of Appeal presided over by Lord Parker C.J. in a judgment prepared by Widgery L.J. in R. v. Hudson [1971] 2 QB 202, 206. That judgment was a considered judgment after relevant authorities had been fully cited: (v) that there are two cases in which the defence of duress has arisen in relation to charges of murder not being murder by a principal of the first degree. The first is Regina v. Kray 53 Cr. App. R. 569. This case is fully analysed by my noble and learned friend Lord Morris of Borth-y-Gest and is somewhat incomplete as an authority. But the defence was admitted, and had it not been, much of the evidence in the case would have been inadmissible. Quite apart from the present appeal I should be most reluctant to cast doubt on it. That, as I understand it, was a case of an accessory before the fact but it is difficult to see any logical distinction between a case where a man is forced to carry a gun and a case where a man is forced to drive a killer - each to the scene of the crime. The other was an unreported case recently tried (by judge alone) in Northern Ireland, (R. v. Fegan) - also involving an involuntary car driver. The charge seems to have been one of aiding and abetting an attempted murder or possibly of attempted murder, which would make it a stronger case, and the defence was admitted. On the other side is R. v. Tyler (1838) 8 Car. & P. 616 in which Lord Denman is reported to have charged the dury in terms more widely expressed than was necessary and in which the facts could not, properly regarded, be considered as amounting to duress.
Outside the United Kingdom there is the important authority of The Queen v. Brown and Morley [1968] S.A.S.R. 467, a case of aiding and abetting murder. A majority of the Supreme Court of South Australia held the defence of duress not admissible, in effect on grounds of public policy. But there is an impressive judgment of Bray C.J. in dissent. He fully examines the authorities, from Hale onwards, and concludes that they do not establish that duress is no defence in any circumstances. I quote one paragraph.

" The reasoning generally used to support the proposition that duress is no defence to a charge of murder is, to use the words of Blackstone cited above, that ' he ought rather to die himself, than escape by the murder of an innocent.' Generally speaking I am prepared to accept this proposition. Its force is obviously considerably less where the act of the threatened man is not the direct act of killing but only the rendering of some minor form of assistance, particularly when it is by no means certain that if he refuses the death of the victim will be averted, or conversely when it is by no means certain that if he com-" plies the death will be a necessary consequence. It would seem hard, for example, if an innocent passer-by seized in the street by a gang of criminals visibly engaged in robbery and murder in a shop and compelled at the point of a gun to issue misleading comments to the public, or an innocent driver compelled at the point of a gun to convey the murderer to the victim, were to have no defence. Are there any authorities which compel us to hold that he would not?".

Events have shown that the learned judge's hypothetical examples were not fanciful. Two decisions of the Privy Council Sephakela v. The Queen (The Times, 14 July 1954) and Rossides v. The Queen (The Times, 3 October 1957) are certainly not authorities against the defence: the former indeed seems to assume that it exists in relation to murder.
S. v. Goliath [1972] (3) South African Law Reports on the other hand is a clear decision that compulsion can constitute a defence on a charge of murder. The judgment of Rumpff J. contains a thorough comparative examination of the law of many countries and systems. I quote the following passage as a statement of principle :

" When the opinion is expressed that our law recognises compulsion as a defence in all cases except murder, and that opinion is based on the acceptance that acquittal follows because the threatened party is deprived of his freedom of choice, then it seems to me to be irrational, in the light of developments which have come about since the days of the old Dutch and English writers, to exclude compulsion as a complete defence to murder if the threatened party was under such a strong duress that a reasonable person would not have acted otherwise under the same duress. The only ground for such an exclusion would then be that, notwithstanding the fact that the threatened person is deprived of his freedom of volition, the act is still imputed to him because of his failure to comply with what has been described as the highest ethical ideal.

" In the application of our criminal law in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means, that which can be expected of the ordinary, average person in the particular circum-" stances. It is generally accepted, also by the ethicists, that for the ordinary person in general his life is more valuable than that of another. Only they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, what-" ever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law, is justified."

The conclusion which I deduce is that although, in a case of actual killing by a first degree principal the balance of judicial authority at the present time is against the admission of the defence of duress, in the case of lesser degrees of participation, the balance is, if anything, the other way. At the very least, to admit the defence in such cases involves no departure from established decisions.
Finally, I ought perhaps to refer to some Commonwealth Codes: there are several which may be relevant. The Criminal Codes of Canada (Art. 7), of New Zealand (Art. 24), of Tasmania (S.20(1)), of Queensland (Arts. 31(4)), while admitting a defence of compulsion by threats, exclude it in cases of murder. However, they also exclude it in the case of a long list of other crimes - longer than is found in Hale - e.g. in Canada, treason, piracy, assisting in rape, forcible abduction, robbery, causing bodily harm, arson. These codes follow the report of the English Criminal Law Commissioners of 1879 (Cmnd. 2345) which, under the influence of Stephen, prepared a Draft Code. It is stated in Note A to page 10 that the section (23) on Compulsion has been framed to express -

"What we think is the existing law and what at all events we suggest ought to be the law "_s

but it was not adopted in England, and as regards some at any rate of the listed offences did not represent the law at the time and certainly does not now represent the law as it is. The authority quoted as regards murder is, as usual that of Hale -

"he ought rather to die himself than kill an innocent". (Hale, Pleas of the Crown 50).

In the same category, perhaps, is a provision (also found in English law) in the law of Northern Ireland, The Criminal Justice Act (Northern Ireland) 1945, section 37 (cf. the Criminal Justice Act 1925, section 47). This provides: -

" Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband."

This section has given me some difficulty for it seems to reflect a Parliamentary opinion that murder and treason are exceptions to the defence of coercion: and if so it may seem difficult to differentiate the case of duress.
But there is considerable obscurity as to the meaning of this provision. A leading writer says of it that it raises an almost insoluble problem of interpretation and states that it may be regarded as an incomplete statement of the common law which still exists to supplement its deficiency (Glanville Williams, Criminal Law, section 249). As a guide to the principle on which duress should be admitted as a defence to a charge of the various degrees of murder, such light as it shed is too dim to read by. I conclude that these statutory provisions leave the common law of this country untouched.
The broad question remains how this House, clearly not bound by any precedent, should now state the law with regard to this defence in relation to the facts of the present case. I have no doubt that it is open to us, on normal judicial principles, to hold the defence admissible. We are here in the domain of the common law: our task is to fit what we can see as principle and authority to the facts before us, and it is no obstacle that these facts are new. The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt and particularly for setting the standards by which the law expects normal men to act. In all such matters as capacity, sanity, drunkenness, coercion, necessity, provocation, self-defence, the common law, through the judges, accepts and sets the standards of right-thinking men of normal firmness and humanity at a level which people can accept and respect. The House is not inventing a new offence: on the contrary, it would not discharge its judicial duty if it failed to define the law's attitude to this particular defence in particular circumstances. I would decide that the defence is in law admissible in a case of aiding and abetting murder, and so in the present case. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.
It is said that such persons as the Appellant can always be safeguarded by action of the executive which can order an imprisoned person to be released. I firmly reject any such argument. A law, which requires innocent victims of terrorist threats to be tried for murder and convicted as murderers, is an unjust law even if the executive, resisting political pressures, may decide, after it all, and within the permissible limits of the prerogative to release them. Moreover, if the defence is excluded in law, much of the evidence which would prove the duress would be inadmissible at the trial, not brought out in court, and not tested by cross-examination. The validity of the defence is far better judged by a jury, after proper direction and a fair trial, than by executive officials; and if it is said that to allow the defence will be to encourage fictitious claims of pressure I have enough confidence in our legal system to believe that the process of law is a better safeguard against this than enquiry by a Government Department.
I would allow the appeal and answer the first certified question in the affirmative. This involves no more than saying that a defence of duress was admissible in law. Since, as I have explained, that defence has yet to be made good in fact, and since a number of elements have to be proved to a jury's satisfaction, I would, under sections 13 and 38 of the Criminal Appeal (Northern Ireland) Act 1968 order a new trial and remit the case to the Court of Criminal Appeal for directions to be given under section 14 of the Act.

Lord Simon of Glaisdale

My Lords,

I
The first question that arises is whether duress is a defence to a charge of murder as a principal in the second degree. The law has never recognised such a defence; and there is considerable authority that duress, and closely cognate juridical concepts (such as "necessity" and "coercion" ), do not extend to being defences to a charge of murder as a principal - if, indeed, to murder in any degree of participation. But it is argued on behalf of the Appellant, first, that the law has already recognised duress as a defence to some crimes, and that there is no logical reason for its limitation; and, secondly, that a criminal law which exacts sanctions against persons who are terrorised into performing prohibited acts is both making excessive demands on human nature, and also is imposing penalties in circumstances where they are unjustified as retribution and irrelevant as deterrent.
Before turning to examine these considerations, it is convenient to have a working definition of duress - even though it is actually an extremely vague and elusive juristic concept. I take it for present purposes to denote such [ well-grounded] fear, produced by threats, of death or grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as overbears the actor's wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it. I am quite uncertain whether the words which I have put in square brackets should be included in any such definition. It is arguable that the test should be purely subjective, and that it is contrary to principle to require the fear to be a reasonable one. Moreover, I have assumed, on the basis of Hudson [1971] 2 QB 202, that threat of future injury may suffice, although Stephen (Dig. Art. 10) is to the contrary. Then the law leaves it also quite uncertain whether the fear induced by threats must be of death or grievous bodily harm, or whether threatened loss of liberty suffices: cases of duress in the law of contract suggest that duress may extent to fear of unjustified imprisonment; but the criminal law returns no clear answer. It also leaves entirely unanswered whether, to constitute such a general criminal defence, the threat must be of harm to the person required to perform the act, or extends to the immediate family of the actor (and how immediate?), or to any person. Such questions are not academic ones, in these days when hostages are so frequently seized. Is it worse to have a pistol thrust into your back and a grenade into your hand, or to have your child (or a neighbour's child) seized by terrorists and held at peril until you have placed in a public building a parcel which you believe to contain a bomb?
I shall have to consider such situations in another connection in a moment. As of now I refer to them to demonstrate the uncertainty of the proffered rule of law in critical and far from fanciful situations. Surely, certainty in the law is hardly less important in the rules which exonerate from criminal responsibility than in those which impose it. Candid recognition, at the outset, of the vague and amorphous nature of the proffered rule should have at least three consequences: first, to cast doubt on whether there is, or should be, any general defence of duress; secondly, to encourage exploration whether the law has not other means of mitigating its rigours towards those who commit prohibited acts under threats which call for far more than ordinary courage to resist; and, thirdly, to cause hesitation before, in deference to logic, extending the defence beyond where it has been heretofore recognised.
And not only do your Lordships meet with uncertainty at the very outset of your enquiry, you also meet with anomaly. Where so. little is clear, this at least seems to be established: that the type of threat which affords a defence must be one of human physical harm (including, possibly, imprisonment), so that threat of injury to property is not enough. The criminal law (M'Growther (1746) 18 St. Tr. 391) is here at one with the law of contract. But a threat to property may, in certain circumstances, be as potent in overbearing the actor's wish not to perform the prohibited act as a threat of physical harm. For example, the threat may be to burn down his house unless the householder merely keeps watch against interruption while a crime is committed. Or a fugitive from justice may say, "I have it in my power to make your son bankrupt. You can avoid that merely by driving me to the airport". Would not many ordinary people yield to such threats, and act contrary to their wish not to perform an action prohibited by law. Faced with such anomaly, is not the only answer, "Well, the law must draw a line somewhere; and, as a result of experience and human valuation, the law draws it between threats to property and threats to the person ". But if an arbitrary line is thus drawn, is not one between murder and traditionally lesser crimes equally justifiable? How can an arbitrary line drawn between murder as a principal in the first degree and murder as a principal in the second degree be justified either morally or juridically? Faced with anomaly and uncertainty, may it not be that a narrow, arbitrary and anomalous general defence of duress, negativing the crime, is far less acceptable in practice and far less justifiable in juristic theory than a broadly based plea which mitigates the penalty?
Any sane and humane system of criminal justice must be able to allow for all such situations as the following, and not merely for some of them. A person, honestly and reasonably believing that a loaded pistol is at his back which will in all probability be used if he disobeys, is ordered to do an act prima facie criminal. Similarly, a person whose child has been kidnapped, and whom as a consequence of threats he honestly and reasonably believes to be in danger of death or mutilation if he does not perform an act prima facie criminal. Or his neighbour's child in such a situation. Or any child. Or any human being. Or his home, a national heritage, threatened to be blown up. Or a stolen masterpiece of art destroyed. Or his son financially ruined. Or his savings for the old age of himself and his wife put in peril. In other words, a sane and humane system of criminal justice needs some general flexibility, and not merely some quirks of deference to certain odd and arbitrarily defined human weaknesses. In fact our own system of criminal justice has such flexibility, provided that it is realised that it does not consist only in the positive prohibitions and injunctions of the criminal law, but extends also to its penal sanctions. May it not be that the infinite variety of circumstances in which the lawful wish of the actor is overborne could be accommodated with far greater flexibility, with much less anomaly, and with avoidance of the social evils which would attend acceptance of the Appellant's argument (that duress is a general criminal defence), by taking those circumstances into account in the sentence of the court? Is not the whole rationale of duress as a criminal defence that it recognises that an act prohibited by the criminal law may be morally innocent? Is not an absolute discharge just such an acknowledgment of moral innocence? Nor should one even stop short at the sentence of the court. Does not our system of criminal justice extend more widely still - to the discretion of prosecutors, to the exercise of the prerogative of mercy, to the operations of the Parole Board?
I spoke of the social evils which might be attendant on the recognition of a general defence of duress. Would it not enable a gang leader of notorious violence to confer on his organisation by terrorism immunity from the criminal law? Every member of his gang might well be able to say with truth, " It was as much as my life was worth to disobey ". Was this not in essence the plea of the Appellant? We do not, in general, allow a superior officer to confer such immunity on his subordinates by any defence of obedience to orders: why should we allow it to terrorists? Nor would it seem to be sufficient to stipulate that no one can plead duress as a defence who had put himself into a position in which duress could be exercised on himself. Might not his very initial involvement with, and his adherence to, the gang be due to terrorism? Would it be fair to exclude a defence of duress on the ground that its subject should have sought police protection, were the police unable to guarantee immunity, or were co-operation with the police reasonably believed itself to be a warrant for physical retribution? (If Hudson [19711 2 Q.B. 202 is to be taken as a growing point for this part of the law, it suggests that the impossibility of recourse to the police is not a necessary precondition for the defence of duress.) In my respectful submission your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers.
As Stephen pointed out, coercion lies at the very basis of the criminal law itself. The criminal law is itself a system of threats of pains and penalties if its commands are disregarded. Is it to abdicate because some subject institutes a countervailing system of threads? The answer might well be a reluctant Yes, if the only alternative were to require something more than ordinary human nature can reasonably be expected to bear. But is that the only alternative? Are prosecutors bound to indict? Have English courts no power and duty to reflect moral guilt in the sentence? (I shall deal later with murder, where the penalty is a fixed one.)
II
A principal difficulty in this branch of the law is the chaotic terminology, whether in judgments, academic writings or statutes. Will, volition, motive, purpose, object, view, intention, intent, specific intent or intention, wish, desire; necessity, coercion, compulsion, duress - such terms, which do indeed overlap in certain contexts, seem frequently to be used interchangeably, without definition, and regardless that in some cases the legal usage is a term of art differing from the popular usage. As if this were not enough, Latin expressions which are themselves ambiguous, and often overlap more than one of the English terms, have been freely used - especially animus and (most question-begging of all) mens rea.
But before I embark on what I regard as a necessary examination of some of these terms, I venture to note that the law accepts generally two concepts as axiomatic, even though acknowledging that metaphysicians and psychologists have amongst themselves divergent views on the subject. The first concept which the law accepts generally as a datum is that of the conscious mind. Of course, the law recognises that exceptionally the mind may be absent, as with a person of very severely subnormal mentality. And, of course, the law does not deny the existence of subconscious psychic activity - indeed, its use of punishment as a deterrent is directed as much to halting action on the verge of consciousness (that is, to conditioning) as to instituting a utilitarian debate in the conscious and reasoning mind whereby the pleasures and pains consequent on prohibited action are weighed against each other. But it remains generally true that it is of conscious and provable mental processes that the law takes cognizance. Significant among them is foresight of consequences.
Largely concomitant with this first datum, the law also accepts generally as an axiom the concept of the free human will - that is, a potentiality in the conscious mind to direct conscious action - specifically, the power of choice in regard to action. Even the most devout predestinarian puts off his theology when he puts on his legal robe. The law may be an ass, but it is not Buridan's ass. The term of art used by the law to denote a person's physical movement actuated by his will is an " act". Of course, here again, the law recognises that there will be exceptions, where a person has no freedom of choice. The classic example is where A by irresistible physical force directs B's hand holding a knife to stab C: this is not B's "act". So, too, the law recognises that there may be such lack of understanding as to preclude a choice in regard to action. Thus the law recognises that a child may lack sufficient understanding to be able to exercise conscious choice: our criminal law presumes irrebuttably that a child under ten, and rebuttably that a child between ten and fourteen, is incapable, through lack of understanding, of having sufficient power of choice as to be criminally responsible. Presumably experience has shown that it is expedient to draw an arbitrary line somewhere; and that, drawn here, justice is done in the generality of cases: the exceptional cases below the age of ten can be lumped and those above the age of fourteen can be safely left to the discretionary power of the courts in sentencing or of the Home Secretary in advising as to the prerogative of mercy, or to the review powers of the Parole Board. The law has found, significantly, that an arbitrary line mitigated by discretionary powers provides the most satisfactory solution. Then, again, there may be physical movements which are not the subject of choice - cases of so-called "automatism". On the other hand, exceptionally, the criminal law will exert its sanctions although the accused exercised no choice: this arises in crimes of absolute liability, where the act (involving the will) of an employee may be imputed to his employer. Such cases, being exceptional, are not relevant to your Lordships' instant inquiry. The general basis of criminal responsibility is the power of choice involved in the axiomatic freedom of the human will.
"Volition" I take to be synonymous with "will" (i.e., the power of directing action by conscious choice); so that an "act" is a voluntary physical movement, and an involuntary physical movement is not an "act".
With this submission that the law accepts as data the concepts of mind and will, I can approach my understanding of some of the other terms used in this branch of the law. The first group of terms (motive, purpose, intention, desire, wish, etc.) all, I think, have reference to various modes and degrees of foresight of the consequences which generally ensue from an act.
Although I have tried to define and analyse them for myself, it would be inappropriate and presumptuous to inflict a jurisprudential essay in an appeal of this sort. It will be, I hope, sufficient if I note six matters. First, intention and specific intent (although I myself much prefer Smith & Hogan's terminology of ulterior intent) are terms of art: the other terms are used in their ordinary senses. Secondly, an intention to bring about a consequence of an act can co-exist with a desire that such consequence should not ensue {Lang v. Lang [1955] AC 402). Thirdly, a wish is a particular instance of desire. Fourthly, therefore, an intention to perform an act with foreseen consequences can co-exist with a wish not to perform the act or that its consequences should not ensure (this is crucial in considering the juridical effect of duress). Fifthly, motive is used in two senses: first, that psychic state which induces a person to act in a certain way by influencing his volition (internal motive); secondly, a contemplated result or object, the desire for which tends to influence volition (external motive): they are like magnet and needle. In the context of duress, fear is the internal motive, avoidance of injury the external motive. Motive is generally irrelevant to the positive prohibitions and injunctions of the criminal law, though of great importance when it comes to the sentence of the court. The motive of fear (or avoidance of injury) is, therefore, like any other motive, on general principle irrelevant to whether a crime has been committed; and therefore in principle duress should not be a general defence to crime. (This was Stephen's view on principle: see Dig., note to Art. 10.) Lastly, actus reus and mens rea are misleading terms; since (other than exceptionally) a mental state is not criminal without an accompanying act and an act is not criminal without some accompanying mental element. Both terms have, however, justified themselves by their usefulness; and I shall myself employ them in their traditional senses - namely, actus reus to mean such conduct as constitutes a crime if the mental element involved in the definition of the crime is also present (or, more shortly, conduct prohibited by law); and mens rea to mean such mental element, over and above volition, as is involved in the definition of the crime.
III
For the second group of terms I go back to the legal axiom of the freedom of the will. A key concept is necessity. Dr. Johnson defined "Free Will" as "The power of directing our own action without restraint by necessity or fate", a definition repeated by the Oxford English Dictionary. Dr. Johnson was, of course, speaking in metaphysical or theological terms. But his definition seems to me to be equally relevant in law. An action constrained by true necessity is one made without true choice of action; it is therefore not a product of the will of the person so constrained, and is therefore not an "act". Necessitas quod cogit defendit, wrote Lord Hale (1 Pleas of the Crown 54): that may be lawfully done which cannot be forborne. It has never been doubted that this is, in general, sound law.
Unfortunately necessity has not been confined juridically to this true and accurate sense. This is probably due to the fact, that, as well as the legal maxim " legem non habet necessitas" (which comes from St. Augustine, not from the rational civilians), there was a popular saying, "Need has no law". So necessity came to be used, most misleadingly, to denote a situation where circumstances faced a person, not with no choice at all, but with the choice between two evils; so that he could hardly be blamed if he chose the lesser. The classic case was the pulling down of another man's house to prevent a fire spreading. The legal dilemma was a real one so long as criminal offences were of absolute liability (i.e., before the concept of mens rea became developed) and punishments inflexible; and some such rule may well have been desirable then. But the resulting confusion, and its juridical sterility, can be strikingly seen in Bacon's treatment of the concept, which he quotes in the form "Necessitas inducit privilegium quoad jura privata" (Maxims, reg. 5): in the field of private law necessity imparts privilege. The first oddity is that Bacon draws the line between private and public law not, as one might expect, between the civil and the criminal law, but towards one end of the criminal law - namely, between murder (which is, somewhat anachronistically, lex privata) and treason (which is lex publico). On such a basis Bacon could assert :

"Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life, if a man steale viands to satisfie his present "hunger, this is no felony nor larceny. So if divers bee in danger of drowning by the casting away of some boat or barge, one of them get to some plancke, or on the boats side to keep himselfe above water, and another to save his life thrust him from it whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable."

Of course, if all this were the law, the instant Appellant's case would be plausible: duress could be seen as a reflection of a general doctrine of criminal exoneration based on the "necessity" of conservation of one's own life even at the expense of another's. But Bacon's statements certainly cannot stand today. It is, in fact, in public law that "necessity" has received recognition for some purposes, being based on an implied mandate from the lawful sovereign to a usurper to govern, in order to avoid the greater evil of anarchy (see Grotius, De Jute Belli ac Pacis, Bk. I, Ch. 4, Sect. XV: Madzimbamuto v. Lardner-Burke [1969] 1 A.C.645, 726D-729D, 732E-736G, 740D-G; Adams v. Adams (A.-G. intervening) [1971] P.188, 208H-21IF). But it has been decisively rejected in the criminal law generally. It is certainly not the law that what would otherwise be the theft of a loaf ceases to be criminal if the taker is starving. Morally, there is a world of difference between a man who steals to satisfy his children's hunger and a man who steals to satisfy his own cupidity; but the moral distinction is marked, not by the provision of some eccentric defence in the positive law, but by the discretion of the court in its sentence. And Bacon's "necessity of conservation of life", with his example of the "necessity" of pushing a shipwrecked man off a boat's side in order to secure, his place, was. called in aid on behalf of the appellants in the famous and terrible case of R. v. Dudley and Stephen (1884) L.R. 14 Q. B.D..273. The two accused were in a ship's boat without food or water; they killed and ate the ship's boy, who was with them. The accused would otherwise probably have died before they were picked up, and the boy would probably have died before them. At the time of the homicide there was no appreciable chance of saving life except by killing someone for the others to eat. Their conviction for murder was upheld on appeal, though the sentence was respited.
Attempts have been made to explain this case away; but the appellants' argument rested on Bacon's "necessity of conservation of life"; and the rejection of any such doctrine was, in my view, the ratio decidendi. Unless some distinction can be drawn in principle between "necessity" and duress, as defences to a charge of murder, the instant appellant can, I think, only succeed if R. v. Dudley and Stephen is overruled - unless, indeed, a distinction is to be drawn in these regards between principals in the first and second degrees.
In my opinion no distinction can be Based on the degree of participation. I have already rehearsed the arguments in support of the concept of duress as a defence (the absence of moral blameworthiness and the inappropriateness of punishment in such circumstances); there are no different arguments relating to "necessity" as a defence: and none affords any ground for distinguishing between principals in the first or second degrees respectively. it is, with all respect, irrational to say, "The man who actually pulls the trigger is in a class by himself: he is outside the pale of any such defence as I am prepared to countenance". He cannot on any sensible ground be put in a class by himself: the man who pulls the trigger because his child will be killed otherwise is deserving of exactly the same consideration as the man who merely carries the gun because he is frightened. Moreover, in general, as Smith & Hogan state in this very connection (3rd ed. p. 166):

" The difficulty about adopting a distinction between the principal and secondary parties as a rule of law is that the contribution of the secondary party to the death may be no less significant than that of the principal."

So the question must be faced whether there is a sustainable distinction in principle between "necessity" and duress as defences to a charge of murder as a principal. In the circumstances where either "necessity" or duress is relevant, there is both actus reus and mens rea. In both sets of circumstances, there is power of choice between two alternatives; but one of those alternatives is so disagreeable that even serious infraction of the criminal law seems preferable. In both the consequence of the act is intended, within any permissible definition of intention. The only difference is that in duress in force constraining the choice is a human threat, whereas in "necessity" it can be any circumstance constituting a threat to life (or, perhaps, limb). Duress is, thus considered, merely a particular application of the doctrine of "necessity ": see Glanville Williams, Criminal Law, 2nd. ed. p. 760. In my view, therefore, if your Lordships were to allow the instant appeal, it would be necessary to hold that R. v. Dudley and Stephen either was wrongly decided or was not a decision negativing "necessity" as a defence to murder; and, if the latter, it would be further incumbent, I think, to define "necessity" as a criminal defence, and lay down whether it is a defence to all crimes, and if not why not. It would, in particular, be necessary to consider Hale's dissent from Bacon as to the starving man stealing a loaf of bread. It would be a travesty of justice and an invitation to anarchy to declare that an innocent life may be taken with impunity if the threat to one's own life is from a terrorist but not when from a natural disaster like ship- or plane-wreck.
In my respectful submission such questions - why, if duress is available as a defence to a principal in the second degree, it should not also be available to a principal in the first degree; and what is the difference in principle between "necessity" and duress that should make the latter but not the former a defence to murder - cannot simply be shrugged off by an assertion that one's judgment goes no further than the facts instantly under consideration. One of the tests of the validity of a legal rule is to see whether its implications stand up to examination. A refusal to submit a rule to such an examination can only be justified if anomaly is considered as a positive virtue in the law.
IV
Bacon's second class of " necessity" was the necessity of obedience. Smith & Hogan state (3rd. ed. p. 170):

" . . . it is safe to assert that it is not a defence for D merely to show that the act was done by him in obedience to the orders of a superior, whether military or civil ".

But the law for a long time recognised (and this was Bacon's principal example) a defence by a wife, in relation to certain crimes committed in her husband's presence, that she acted in obedience to his orders. The fiction of the law, raising a strong presumption, was that she thereby acted under his coercion (it was this presumption that led Mr. Bumble, with his domestic experience to the contrary, to call the law an ass); and the doctrine went by the technical name of " coercion ".
"Coercion" in its popular sense denotes an external force which cannot be resisted and which impels its subject to act otherwise than he would wish. In this popular sense it comes into the law of probate (where it goes by a misleading technical name) as invalidating the execution of a testamentary instrument. The mental state has been thus described: if the testator could speak his mind he would say, "This is not my wish, but I must do it" (Wingrove v. Wingrove (1885) 11 PD 81, 83 ; see also Baudains v. Richardson [1906] AC 169, 185) (" must" being used in a popular sense, not as involving absolute absence of choice). Though threats are not necessary to constitute coercion in the law of probate, it will be noted that the state of mind is precisely that produced by duress. It was this state of mind which was presumed by the law to be that of a wife performing certain acts prohibited by law in the presence of her husband; and the law held her to be thereby excused.
Both the doctrine itself and its limitations are of crucial significance in relation to duress. As early as Bracton's De Legibus (f. 151b) the doctrine was held not to apply to " heinous deeds" (atrocioribus): see Professor Thome's edition for the Selden Society, vol. II, pp. 427-8. Hale (Pleas of the Crown, 45) stated specifically that it did not apply to murder or treason. The Report of the Committee on the Responsibility of Wife for Crimes committed under the coercion of husband (Cmnd. 1677 of 1922) stated that the presumption applied to all felonies except murder. The exceptions of treason and murder were given specific statutory endorsement when the presumption of coercion was abolished by section 47 of the Criminal Justice Act 1925, the doctrine being otherwise affirmed:
" Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband ".
(The Criminal Justice Act (Northern Ireland) 1945 is in similar terms). The exact scope and effect of this provision, and its interrelationship with the doctrine of duress, are obscure in the extreme; and different interpretations have been proffered, without any consensus emerging. But two things at least are clear: first, Parliament recognised "coercion" as a subsisting defence in law; and, secondly, Parliament refused to recognise it as a defence to charges of treason or murder, without differentiating between degrees of participation. Since "coercion" was defined neither by the antecedent law nor by the statute, I take it that it is used in its ordinary sense, as it is in the law of probate, and which I have just discussed. The state of mind produced, and which excuses from liability, is thus the same for both "coercion" and duress - namely, "This is not my wish, but I must do it" - and in both the constraint is due to external human pressure. The difference lies, first, in the method of pressure (for duress it is limited to threats, whereas for "coercion" it extends to any force overbearing the wish); and, secondly, that there is authority to the effect that duress is a defence to certain types of treason, whereas "coercion" is not. But neither of these differences justifies any differentiation between "coercion" and duress of a defence to murder: and the two concepts (duress and "coercion") are, indeed, habitually treated by jurists as cognate. If, therefore, "coercion" constitutes no defence to a charge of murder, it would be anomalous were duress to do so.
V
That duress should not negative criminal responsibility, but go to mitigation of the penalty, is suggested by its operation in other systems and branches of law. The great classical jurist, Paulus, discusses the doctrine, presumably in relation to the damnosa hereditas. Under the title " Acts done through Fear ", he is reported as follows;

" If I have accepted an inheritance under the influence of fear, I am of opinion that I become heir, because, although, if I had been free, I should have refused, yet I did consent, though under compulsion (coactus volui). But the Praetor will give me relief ". (Dig. IV, ii. 21.5.)

(The Praetor exercised an equitable jurisdiction to relieve from the ordinary legal consequences of a transaction.)

I do not cite this merely for its antiquarian interest. So contemporarily aware a writer on the criminal law as Professor Glanville Williams (2nd ed. p. 751) quotes the phrase coactus volui as descriptive of the mental state of an actor under duress according to our criminal law. I hope, indeed, to have demonstrated that duress is not inconsistent with act and will, the will being deflected, not destroyed; so that the intention conflicts with the wish - a legal situation correctly described by the phrase coactus volui. The actor under duress has performed an act which is capable of full legal effect: if he is to have relief it should be discretionary. Translated into terms of the criminal law, he is guilty of the crime, but he may at discretion be relieved against its potential penal consequences when it comes to sentencing.
Similarly with duress in the English law of contract. Duress again deflects, without destroying, the will of one of the contracting parties. There is still an intention on his part to contract in the apparently consensual terms; but there is coactus volui on his side. The contrast is with non est factum. The contract procured by duress is therefore not void: it is voidable - at the discretion of the party subject to duress.
VI
My Lords, I have ventured so far to deal with the policy of any sane and humane system of criminal justice as regards the problem which faces your Lordships, and with its juristic implications. But, of course, no discussion can have any claim to adequacy which does not extend to the authorities. Fortunately, I am absolved from reviewing them in detail, since that has been done by my noble and learned friends. My only misgiving is that such an impressive muster should be sent packing so ignominiously. Poor Hale, poor Blackstone; wretched Russell and Kenny; poor, poor Lord Denman. But at least they are in good company. There are all those famous jurists, headed by Stephen, who drew up the draft Code of 1879 under the fond belief that they were codifying the common law. And all those framers of the Commonwealth Codes, and the commentators on them, under the same illusion. And Americans too. They are like the denizens of the first circle of Hell, who, for all their wisdom and virtue, lived in such benighted times as to have forfeited salvation. So, too, these great lawyers are too eminent to go altogether unacknowledged: they are recognised with a courtly bow, but their words are lost in the gale of juristic change. For, in truth, their voices were unanimous that duress is no defence to murder. What is to be set against them? A dissenting judgment of Bray C.J., which boggles at murder as a principal in the first degree and adds (almost alone) attempted murder to the exception. A case of accessory before the fact where the issue was virtually uncontested. A passing reference in a Privy Council case where the point did not fall for decision. One unreported trial in England and another in Northern Ireland. A judgment in Roman-Dutch law. If the first question for your Lordships' consideration is to be answered Yes, it is overturning the consensus of centuries. I am all for recognising frankly that judges do make law. And I am all for judges exercising this responsibility boldly at the proper time and place - that is, where they can feel confident of having in mind, and correctly weighed, all the implications of their decision, and where matters of social policy are not involved which the collective wisdom of Parliament is better suited to resolve (see Morgans v. Launchbury [19731 A.C. 127, 136F-137A, 137G). I can hardly conceive of circumstances less suitable than the instant for five members of an appellate committee of your Lordships' House to arrogate to ourselves so momentous a law-making initiative. I have had the advantage of reading the speech prepared by my noble and learned friend, Lord Kilbrandon; and I entirely agree with it - especially what he has said about this aspect of the appeal.
I would add, as regards new law-making, that the cognate defences of "necessity" and "coercion" also do not extend to murder - the latter by recent statutory reinforcement.
VII
A sane system of criminal justice does not permit a subject to set up a countervailing system of sanctions nor by terrorism to confer criminal immunity on his gang. A humane system of criminal justice does not exact retribution from those who infringe the substantive provisions of its code under stresses greater than ordinary human nature can bear, nor attempt, by making an example of them, to deter those who in the nature of things are beyond deterrent. A sane and humane system of criminal justice is sufficiently flexible to reconcile such considerations, and to allow for all their infinite degrees of interaction. I have ventured to suggest that our own system of criminal justice is capable of such sanity and humanity - provided always that it is recognised to extend beyond the mere injunctions and prohibitions and immunities of the substantive criminal code.
There is, however, an apparent exception to such flexibility. This is constituted where a crime has a fixed penalty - specifically, murder with its fixed penality of life imprisonment. It is true that prosecutors have a discretion whether to indict; but such discretion is hardly real in the circumstances which fall for your Lordships' instant consideration. It is true that the Home Secretary can advise exercise of the royal prerogative of mercy, and that the Parole Board can mitigate the rigour of the penal code; but these are executive not forensic processes, and can only operate after the awful verdict with its dire sentence has been pronounced. Is a sane and humane law incapable of encompassing this situation? I do not believe so.
An infraction of the criminal code under duress does not involve that the conduct is either involuntary or unintentional. The actor is therefore responsible for his act". But his responsibility is diminished by the duress: his is no longer actus volui, but coactus volui. Provocation operates similarly to diminish the responsibility, transmuting the great crime of murder to the lesser crime of manslaughter with no fixed penalty.
The English common law evolved the concept of provocation. Since the Homicide Act 1957 the provocation may originate in a third party, making the doctrine even closer to that of duress. The Scottish common law evolved another concept of diminished responsibility for homicide (H.M. Advocate v. Dingwall (1867) 5 Irv. 466). In my judgment the English common law is well capable of accommodating duress under the concept of diminished responsibility reducing murder to manslaughter. This was the way duress was treated in the South African case of Hercules [19541 (3) S.A.L.R. 826 (A.D.); and it seems to me to be the conception of duress in relation to homicide which has greatest juridical cogency.
As for duress in relation to treason, it seems to me generally to fit more aptly into the doctrine of "necessity" in public law which I have already referred to; otherwise falling to be dealt with, where appropriate, by amnesty and pardon (as in M'Growther and other cases after the 1745 rebellion). I need only note that one particular class of treason - being a participant in the death of the lawful sovereign - was treated as if it were murder, no defence of duress being allowed: Axtell (1660) Kel.J.13 (it is significant that the accused would have been only a principal in the second degree of murder).
VIII
Your Lordships have therefore, as it seems to me, three courses open:

(1) to approve of the various cases where duress has been allowed to be a defence negativing the crime, and then extend the doctrine to the crime of murder as a principal;

(2) to overrule' the cases where duress has been allowed to be a defence negativing the crime, leaving duress as a matter of mitigation of sentence in crimes other than homicide, and in homicide as a defence reducing murder to manslaughter;

(3) to affirm the cases where duress has been allowed to be a defence negativing the crime, but to refuse to extend it to murder as a principal.

I have, I hope, sufficiently indicated the juridical, practical and constitutional considerations which have caused me decisively to reject the first course.
Were it not for two considerations I would strongly urge your Lordships to adopt the second course. The first such consideration is that the Great Britain Parliament in 1925 and the Northern Irish Parliament as recently as 1945 affirmed the existence of the strictly cognate concept of "coercion" as a general defence available to married women who commit what would otherwise be criminal offences (except murder or treason) in the presence of their husbands. These seem to me to have been policy decisions by. Parliament with implications as to both the existence and limitations of the defence of duress: they should be respected by the courts, which should leave it to Parliament to alter, develop or confirm the existing law as so advised. This is strongly reinforced by the second consideration. This branch of the law is closely bound up with matters of policy relating to public safety. Such matters are far more fitly weighed in Parliament on the advice of the Executive than developed in courts of law. In fact, the law of duress is currently subject to the examination of the Law Commission (see Working Paper No. 55), which will shortly be reporting to Parliament.
In these circumstances, I have no doubt that the proper course for your Lordships is merely to accept the law as it has heretofore developed, and to declare that the defence of duress is not available to a person accused of murder as a principal. I would therefore answer the first certified question, No.
IX The second certified question reads :

" (2) Where a person charged with murder as an aider and abettor is shown to have intentionally done an act which assists in the commission of the murder with knowledge that the probable result of his act, combined with the acts of those whom his act is assisting, will be the death or serious bodily injury of another, is his guilt thereby established without the necessity of proving his willingness to participate in the crime? "

The words "willingness to participate in the crime" exemplify what I ventured to describe as the chaotic and confusing terminology in this branch of the law. Counsel for the Appellant spelt it out in words that identified the real point at issue - namely, whether the crime of aiding and abetting requires proof of a "specific intent" to further the aim of the principal offender. I have already indicated that I prefer Smith & Hogan's terminology of "ulterior intent" ; it is more illuminating as well as less ambiguous, since it highlights that the definition of certain crimes requires a mens rea which goes beyond foresight of the actus reus. An example is wounding with intent to do grievous bodily harm. The actus reus is the wounding ; and the prosecution must start by proving a corresponding mens rea - namely, that the accused foresaw the wounding as a likely consequence of his act. But this crime is defined in such a way that its mens rea goes beyond foresight of the actus reus; so that the prosecution must in addition prove that the accused foresaw that the victim would, as a result of the act, probably be wounded in such a way as to result in serious physical injury to him. The issue involved in the second certified question is whether the crime of aiding and abetting another to commit a crime similarly requires proof of a mens rea which goes beyond the actus reus.
I find myself entirely convinced by the judgment delivered by Lowry C.J. on behalf of the majority of the court on this issue. I would merely emphasise that the majority did not hold that the crime of aiding and abetting a crime required no proof of mens rea: they held that the mens rea did not involve a " specific intent".
I respectfully agree. As regards the actus reus, "aiding and abetting" are, as Smith & Hogan note (p. 93), synonymous. But the phrase is not a pleonasm ; because "abet" clearly imports mens rea, which "aid" might not. As Devlin J. said in National Coal Board v. Gamble [1959] 1 Q.B. 11, 20:

" A person who supplies the instrument for a crime or anything essential to its commission aids in the commission of it; and if he does so knowingly and with intent to aid, he abets it as well and is therefore guilty of aiding and abetting ".

The actus rea is the supplying of an instrument for a crime or anything essential for its commission. On Devlin J.'s analysis the mens rea does not go beyond this. The act of supply must be voluntary (in the sense I tried to define earlier in the speech), and it must be foreseen that the instrument or other object or service supplied will probably be used for the commission of a crime. The definition of the crime does not in itself suggest any ulterior intent; and whether anything further in the way of mens rea was required was precisely the point at issue in Gamble's case. Slade J. thought the very concept of aiding and abetting imported the concept of motive. But Lord Goddard C.J. and Devlin J. disagreed with this. So do I. Slade J. thought that abetting involved assistance or encouragement, and that both implied motive. So far as assistance is concerned, this is clearly not so. One may lend assistance without any motive, or even with the motive of bringing about a result directly contrary to that in fact assisted by one's effort. The failure to commit Grouchy's corps at Waterloo was of great assistance to Wellington, but this was hardly Napoleon's motive in his handling of the corps. As for encouragement, at most it is only one way of abetting.
May I add a word or two about R. v. Steane [1947] 1 K.B. 997, which was much pressed on your Lordships? The offence charged was doing an act likely to assist the enemy with intent to assist the enemy. The accused had taken part in enemy broadcasts. He alleged that he had done so in consequence of violence towards himself and of threats to himself and his family. It was a hard case; but in several ways it seems to me to be an unsatisfactory authority. The judgment proceeded on the assumption that the onus of proof of duress lay on the accused; but cf. R. v. Gill [1936] 2 All E.R. 688. The offence charged is difficult to classify as to its mens rea. It might be misleading to call it an "ulterior intent", since the mens rea went no further than the actus reus. Perhaps this is a case where "specific intent" is justified for all its ambiguity. But the mens rea involved does not seem to admit of the approach adopted in Hyam v. D.P.P. [1947] 2 All E.R. 41. I think that the "intent" in Steane's case should probably be construed as the mental element involved in performing an act with the object that a particular consequence should ensue - i.e., virtually, motive or purpose. But it seems to have been assumed that motives cannot be mixed, and that proof of one purpose excludes all others ; whereas an ultimate purpose of having himself and his family was perfectly compatible with an immediate purpose of assisting the enemy - as a necessary step towards the ultimate purpose. I think the court really in silence construed "intent" as " desire ". I do not suggest that the actual decision was wrong: but I would support it on the alternative ground that, when a person is placed in an unusual and stressful situation, it is unsafe to assume, even prima facie, that he intends the natural and probable consequence of his acts; so that the direction to the jury was misleading and inadequate. However that may be, I do not think that R. v. Steane suffices to call for an answer to the second question in favour of the Appellant.
I would therefore answer the second question, Yes; and I would dismiss the appeal.

Lord Kilbrandon

My Lords,

The learned trial judge directed the jury to the effect that the defence of duress is not available as exculpation in a charge of murder, whether the accused has been charged as a principal in the first or in the second degree. In my opinion, that direction correctly stated the law as it then stood and now stands. It is my misfortune that while I agree with those of your Lordships who consider that that law is in a very unsatisfactory state, and is in urgent need of restatement, I remain convinced that the grounds upon which the majority propose that the conviction of the Appellant be set aside involve changes in the law which are outside the proper functions of your Lordships in your judicial capacity. If duress per minas has never been admitted as a defence to a charge of murder, and if the proposal that it should now be so admitted be approved, it seems to me that your Lordships, in countenancing a defence for many years authoritatively (though not in your Lordships' House) denied, would be doing what, in the converse, was firmly and properly disapproved in the case of R. v. Knuller [1973] A.C. 435. Instead of, for reasons of public policy, declaring criminal for the first time conduct until then not so described, your Lordships would be for the first time declaring the existence of a defence to a criminal charge which had up to now, by judges, text-writers, and law-teachers throughout the common law world, been emphatically repudiated.
I am putting the matter in this way, because I want to emphasize in the comparatively brief observations I have to make that since, first, in my opinion, the learned judge's charge was right, and secondly that the substance of the law which he laid down is hard to defend, we are therefore in the realm of law reform: in my judgment it is an impermissible, or at least an undesirable, mode of law reform to use the occasion of an appeal in a decided case for the purpose of declaring that changing conditions and enlarging opinions have rendered the ratio decidendi of the lower court obsolete and therefore susceptible of being set aside. This is perhaps a technical way of looking at the matter. But there is a much wider aspect. It seems to me to be clear that the effect of the opinions of the majority of your Lordships would be to change what has during many generations of judges, teachers, practitioners and students been regarded as the common law. If they were all wrong, I can imagine no more plausible justification for that rather dubious brocard communis error facit ius. It would in my opinion be a necessary preliminary to the reform of that generally accepted version of the common law that consultations, on a far wider basis than discussions among lawyers, including the arguments of counsel before the highest tribunal, should have taken place and been seriously considered. If there is one lesson which has been learned since the setting up of the Law Commissions it is this, that law reform by lawyers for lawyers (unless in exceptionally technical matters) is not socially acceptable. An alteration in a fundamental doctrine of our law, such as this appeal proposes, could not properly be given effect to save after the widest reference to interests, both social and intellectual, far transcending those available in the judicial committee of your Lordships' House. Indeed general public opinion is deeply and properly concerned. It will not do to claim that judges have the duty - call it the privilege - of seeing to it that the common law expands and contracts to meet what the judges conceive to be the requirements of modern society. Modern society rightly prefers to exercise that function for itself, and this it conveniently does through those who represent it in Parliament. And its representatives nowadays demand, or should demand, that they be briefed by all those who can qualify an interest to advise them. The fascinating discussions of policy which adorn the speeches of your Lordships - and to which I intend to make a short and undistinguished addition - are themselves! highly illustrative of what I mean. They may perhaps be taken as the ultimate in the distillation of legal policy-opinion. But that is not enough. I will not take time to enumerate the various other disciplines and interests whose views are of equal value in deciding what policy should inform the legislation, necessary if reform of the law is really called for, giving effect to the defence of duress per minas in all crimes including murder. In the absence of such consultations I do not think it would be right to decide an appeal in such a way as to set aside the common understanding of the law.
I will say a word only as to the law as presently understood, because thorough examinations of the history and progression of the doctrine have already been made. The content of duress I will look at briefly later on, in so far as that is necessary. Duress is recognised as a defence to crime. It has never been laid down judicially as a matter of decision that murder is an exception to that rule, though many judges have expressed the opinion that it is. The whole weight of opinion in common law jurisdiction has always been to that effect. For sheer economy of citation I will select two examples only, one academic, the other judicial. Professor Kenny in his Outlines at p. 74 - I quote from the twelfth edition since it was prepared by him - says, " It (sc. duress per minas) certainly will not excuse murder." This is what that master must have taught Cambridge law students over many years. I will select as my second authority that of Bray C.J. in The Queen v. Brown and Morley [1968] S.A.S.R. 467, since in his dissenting opinion he allows, as I myself would not, duress as a defence to a charge of murder as a principal in the second degree. At p. 499 he says,

" As at present advised I do not think duress could constitute a defence to one who actually kills or attempts to kill the victim."

I do not think the fact that duress may excuse treason is relevant - see R. v. M'Growther [1746] 18 St. Tr. 391 on the argument that treason is an even graver crime than murder. I do not agree with that. The crime of treason always seems grave to an injured or threatened executive. But no-one would classify George Washington or Flora Macdonald - undoubted traitors - as heinous criminals.
Your Lordships have examined the Commonwealth and other codes which were cited to us. It is true that the framers took the opportunity to include among the crimes to which duress will not be available as a defence some, other than murder, which would not be so included in a re-statement of the present law of England. But it seems perfectly clear that the framers, when they so classified the crime of murder, did so because they thought they were, in that, respect at least, giving effect to accepted English law. If this appeal be allowed I think it will have to be taken that they, like Professor Kenny, and many others, were under a misapprehension.
The next aspect of the matter leads me to the little I have to say on policy. The difference between the defence of duress, which comes from coercion by the act of man, and that of necessity, which comes from coercion by the forces of nature, is narrow and unreal. Counsel for the Appellant was, in my opinion, right to concede that if his argument succeeded, the case of R. v. Dudley and Stephens [1884] R. 14 Q.B.D. 273 must be held to have been wrongly decided. It seems clear that, if the argument for the Appellant is sound, the judge in that case ought to have directed the jury that in law the defence of necessity was available, and to have taken a plain verdict of "guilty" or " not guilty ". If that be so it will then become essential, at some time or other, to decide how far the doctrine of necessity is to 'extend. Unless, for example, want is to be allowed to excuse theft, a strange situation would arise. Suppose that in the instant case the accused had acted under the threat of violence to his family. Then, although if he had taken a loaf from a supermarket to feed his starving children he would have been a thief, he is guiltless if, for his family's safety, he kills the father of Constable Carroll's children. Again, it is impossible not to be deeply impressed by the circumstances; dramatically figured by your Lordships, which are especially liable to occur at this moment in Northern Ireland ; the coercion of otherwise law abiding citizens could, under present law, turn them into unwilling murderers. On the other hand, if the present law be altered, coercion will be a good defence to one who, at the behest of a mafia or I.R.A. boss, places a bomb in an aircraft and 250 people are killed. It is more likely, too, that the accused will have assisted by preparing and delivering the bomb knowing its intended use; in that case the question would be, coercion a good defence to murder as a principal in the second degree or as accessory. This situation was long ago foreseen. The closing passage of the judgment in R. v. Dudley and Stephens (supra) points out that, if the defence were a good one, the strongest man on board the boat might have eaten his way through all the crew, killing them one by one, and after his rescue have been held guiltless. How many may a man kill in order to save his own life? I pose such a question for the purpose of suggesting that it cannot be answered in this place. It raises issues, some legal, others social, even more ethical, upon which the public will clamour to be heard. It would probably be necessary, too, to lay down that coercion would not avail one who, e.g., took orders from the head of the gang of which he was a voluntary member. Such a provision figures in the codes; I do not see how it could become part of English law save by legislation. In short, the policy questions are so deeply embedded in the legal doctrines we are being asked to review that we may be in danger of reforming the law upon an inadequate appreciation of public needs and public opinion. What would purport to be a judgment declaratory of the common law would in reality be a declaration of public policy.
On the question whether it is possible, in this context, to distinguish between the defences open to a principal in the first degree and then open to a principal in the second degree I have had the advantage of seeing the speech of my noble and learned friend Lord Simon of Glaisdale. I agree with him that no distinction can be made; I would accordingly agree with the majority in The Queen v. Brown and Morley (supra). As regards the case of R. v. Kray, it is possible, though hardly satisfactory, to distinguish it on the ground that the defence was there said, there being no party to the case with an interest to argue the contrary, to be available to an accessory, not to a principal in any degree. I will leave the case by saying that if, as I hope, the examination of this doctrine, already begun by the Law Commission, is to be pursued to legislation, the case may therein be further considered with a view to fitting it into any proposed code. In the meantime, it does not affect the present appeal.
On the view which I have taken, it is not truly necessary to go into the meaning of the word duress, that is, the sense in which it may exhibit an admissible defence to crime. Our learned forebears who used the word knew what they meant by it, and they were capable of expressing themselves as clearly as we can do. But I must confess to great difficulty in seeing how, in a reformed situation, (by which I mean a situation in which all crimes are treated as regards duress in the same way), duress should exculpate rather than mitigate. The effect of a threat upon its recipient may be said to be to reduce bis constancy, so that he is forced to do what he knows to be wrong and would not have done unless he had been threatened. He is not like the infant or the insane, who are disqualified or disabled from forming a criminal intention. He has decided to do a wrong thing, having balanced in his mind, perhaps unconsciously, the consequences to himself of refusal against the consequences to another of acquiescence. But the agonising nature of the decision he has to make may render it impossible for a civilised system of criminal law to hold him fully responsible for what followed from that decision. Much of our difficulty in assessing his responsibility at law stems from the "black-or-white" nature of that unfortunate expression mens rea, which is none the better for concealing itself "in the decent obscurity of a learned language". Our minds, whatever we are doing, are neither wholly wicked nor wholly virtuous. To elaborate upon that proposition would be to encourage the wrong kind of debate. But the practical importance, for present purposes, is that the decision of the threatened man whose constancy is overborn so that he yields to the threat, is a calculated decision to do what he knows to be wrong, and is therefore that of a man with, perhaps to some exceptionally limited extent, a " guilty mind ". But he is at the same time a man whose mind is less guilty than is his who acts as he does but under no such constraint. The law must give effect to that distinction.
This would be easy except in a charge of murder, whether against a principal in the first or the second degree, or against an accessory before the fact, upon all of whom the court has always, on conviction, been obliged to impose the extreme penalty of the law. It seems to me probable, therefore, that if the solution ultimately found is the allowing of duress, or necessity, as defences to all crimes, in the sense only of mitigating penalty, and if murder is to continue as a crime visited upon conviction with a mandatory sentence, it would be perfectly reasonable, for the reasons I have indicated, to make duress or necessity grounds for declaring diminished responsibility, so that in cases of murder where the defence was established a verdict of manslaughter would be returned and the penalty left at large.
An example of merely antiquarian interest is provided by the law of Byrthynsak or Burdingsek in Scotland. According to the Regiam Majestatem, B.4 Tit. 16 (Skene's translation 1609)

" Be the law of burdingsek na man sould be hanged for sae meikill of stollen meat as he may bear in ane seck upon his back. "

Hume (Commentaries I 55) points out that the law did not operate to exculpate from theft, but to avoid the capital penalty, where necessity had coerced a man into dishonesty.
There can be no doubt that the remedy proposed would require legislation. The doctrine of diminished responsibility was introduced judicially into the common law of Scotland (H.M. Advocate v. Dingwall (1867) 5 Irv. 466), not without some expressions of disagreement, a late example of which is to be seen in the charge to the jury by Lord Johnston in H.M. Advocate v. Higgins 1914 S.C.(J) 1. But when it was decided to make this doctrine part of the law of England also, it was by Statute (Homicide Act 1957 Section 2) that that was done. I cannot suppose that the extension of the doctrine, in the sense I have suggested, could be effected by judicial decision.
In the result, accordingly, I would answer the first question certified in the negative. As regards the second, I am entirely satisfied by the reasoning of the Lord Chief Justice, which I would desire to adopt. I would therefore refuse this appeal.

Lord Edmund-Davies

My Lords,

Of the two points of law certified by the Court of Criminal Appeal in Northern Ireland as properly calling for consideration by this House, the second had not been raised by the accused in his appeal to that Court but arose in the course of the hearing and led to O'Donnell J.'s arriving at a conclusion different from that of the Lord Chief Justice and Curran L.J. as to the proper outcome of the appeal.
Having regard to the view I have formed as to the correct answer (to Question 1, in my judgment none is strictly called for in relation to Question 2. But, as it does indeed raise a point of law of general public importance which was developed at length before this House, it would, I think, be unsatisfactory were I to give no indication of the conclusion I have arrived at in relation to it. I can, however, do that with brevity. In my judgment, Question 2 calls for a negative answer, and it is sufficient for me to say that I respectfully adopt in this regard the reasons advanced by the Lord Chief Justice.
Question 1, which all three members of the Court of Criminal Appeal answered in the negative, is: On a charge of murder is the defence of duress open to a person who is accused as a principal in the second degree (aider and abettor)? While the facts of the instant case narrow the issue now calling for determination, its consideration has inevitably led this House to examine wider questions both of strict law and of public policy. That examination, in its turn, has disclosed a jurisprudential muddle of a most unfortunate kind, and one's sympathy is with the learned trial judge and with the appellate court who were confronted by it.
The facts of the case have already been related in the speeches of my noble and learned friends. I restrict myself to quoting a passage from the judgment of the Lord Chief Justice:

"It was . . . proved that, before the date of the shooting, six policemen had already been murdered in the Ardoyne area, which was a stronghold of the Provisional I.R.A., and where the appellant lived, and that Sean Meehan was a well-known and ruthless gunman, and the appellant and Bates gave evidence that Meehan was the kind of person whom it would be perilous to defy or disobey and who, on the occasion in question, gave his instructions in a manner which indicated to them that he would tolerate no disobedience. There was no evidence of a direct threat by Meehan or any other person against the life or personal "safety of the appellant or any member of his family, but both the appellant and Bates testified to their fear of Meehan and their clear view that their disobedience of his instructions would cause them to be shot".

The Lord Chief Justice proceeded to consider the various submissions of the Prosecution that the available evidence did not constitute a triable issue fit to go to the jury on the plea of duress. The court accepted that "mere apprehension" of death or serious bodily injury is not enough, and that "the duress must be constraint exercised by one person on another". But they added that,

"The constraint . . . can be implied, as well as express, and, once there is evidence that A. has somehow caused B. to fear for himself or his family, it is a question of fact whether the reasonable possibility of this having occurred has been disproved by the Crown. We consider that the evidence in this case raised a question for the jury whether Meehan impliedly threatened the appellant with death or serious bodily injury ".

The court next considered the submission of the Crown that,

". . . the defence of duress is not available to an accused who voluntarily joins in a criminal enterprise and is afterwards subjected to threats of violence in order to ensure that he does not withdraw, even if the enterprise becomes more gravely criminal than the accused foresaw ".

This may well have been an echo of Stephen's History of the Criminal Law of England, II, 108, that -

" If a man chooses to expose and still more if he chooses to submit himself to illegal compulsion, it may not operate even in mitigation of punishment. It would surely be monstrous to mitigate the punishment of a murderer on the ground that he was a member of a secret society by which he would have been assassinated if he had not committed murder ".

But, in the light of Lynch's police statement and his evidence that at no time was he a member of the I.R.A. or any other organisation, and in the absence of any prosecution evidence to the contrary, the appellate court not surprisingly held that the point did not arise for consideration and expressly reserved it for determination if on any future occasion it became relevant.
As to the imminence of the threat of death or serious bodily injury, and the Crown's submission that the plea of duress is never available if the accused has not taken advantage of an opportunity to escape from its influence, the Lord Chief Justice said:

"We consider it to be a question of fact (assuming duress to be a proper issue for the jury) whether the Crown could successfully invoke this principle, bearing in mind that if the effect of the threat is felt at the material time, this is enough to keep duress in issue: R. v. Hudson "( [1971] 2 Q.B.D. 202 ), Subramaniam v. Public Prosecutor ( [1956] 1 WLR 965 ). The same authorities are relevant to the immediacy of the threat, because the question is not when the threats are made, but whether they overbore the will of the accused at a material time ".

Having thus considered the main elements of duress, and having apparently adopted the subjective test of the effect on the mind of this Appellant of the alleged implied threat, the Lord Chief Justice concluded:

" There was, in our opinion, on the facts a clear issue of duress in this case, and therefore the question in this appeal as to whether duress may afford a defence to a person accused of murder as a principal in the second degree is material".

It is manifestly impossible to arrive at an acceptable answer to that question without first examining the raison d'etre and limits of the plea of duress, and that I diffidently proceed to attempt.

I. Should duress be a defence to any crime?

In Reg. v. Tyler and Price ([1938] 8 Car. & P. 616), Lord Denman, C.J., said:

" . . . the law is that no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind . . . It cannot be too often repeated that the apprehension of personal danger does not furnish any excuse for assisting in doing an act which is illegal "

It has been said that, despite the unqualified nature of these observations, they must be read as applying only to the murder charge then being tried. But, over forty years later, Stephen wrote in his History of the Criminal Law, II, 107:

"Criminal law is itself a system of compulsion on the widest scale. It is a collection of threats of injury to life, liberty and property if people do commit crimes. Are such threats to be withdrawn as soon as they are encountered by opposing threats? The law says to a man intending to commit murder, If you do it I will hang you. Is the law to withdraw its threat if someone else says, If you do not do it I will shoot you?

Surely it is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary. It is, of course, a misfortune for a man that he should be placed between two fires, but it would be a much greater misfortune for society at large if criminals could confer impunity upon their agents by threatening them with death or violence if they refused to execute their commands. If impunity could be so secured a wide door would be opened to collusion, and encouragement would be given to associations of malefactors, secret or otherwise. No doubt the moral guilt of a person who commits a crime under compulsion is less than that of a person who commits it freely, but any effect which is thought proper may be given to this circumstance by a proportional mitigation of the offender's punishment.

These reasons lead me to think that compulsion by threats ought in no case whatever to be admitted as an excuse for crime, though it may and ought to operate in mitigation of punishment in most though not in all cases ".

Well, such an approach at least makes for neatness. No matter how terrifying the circumstances which have impelled a man (and which, indeed, might well have impelled most men) to transgress the criminal law, he must be convicted. Crutchley (1831 5 Car. & P. 133) should therefore have been convicted of malicious damage during the threshing machine riots, even though he had been compelled by a mob to strike a blow at threshing machines. Instead, his defence of duress was upheld. The trouble about such neatness is that it may work intolerable injustice in individual cases, for, as Professor Glanville Williams has observed ('Criminal Law', para. 245),

"Crutchley was a case where justice demanded not merely a mitigation of punishment, but no punishment at all; nor would there have been any sound reason for registering even a technical conviction ".

Apart from the obloquy involved in the mere fact of conviction, in the nature of things there can be no assurance that even a completely convincing plea of duress will lead to an absolute discharge. And even the exercise of the Royal prerogative involves the notion that there must have been a degree of wrongdoing, for were it otherwise no ' pardon' would be called for. Furthermore, as the Appellant's counsel cogently submitted, if duress is excluded at the trial, it may well be that (unlike in the present case) no evidence on the point will be given, and there would accordingly be no satisfactory means of deciding whether the plea had any substance. In such circumstances, a decision by the Home Secretary adverse to the accused might understandably be regarded as unsatisfactory, for he might well have concluded that duress had not been made out rather than that the Prosecution had established its unacceptability, which is indisputably the correct approach.
Stephen himself cannot be acquitted of contributing to the lack of neatness and consistency in this branch of the law. He was a member of the Royal Commission whose Draft Criminal Code of 1879 - that is, four years before his "History" appeared - purported to express "what we think is the existing law, and what at all events we suggest ought to be the law". Section 23 provided that:

" Compulsion by threats of immediate death or grievous bodily harm . . . shall be an excuse for the commission of any offence other than high treason . . . , murder, piracy, offences deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm and arson ..."

These exceptions are substantially greater than those of Hale (' Pleas of the Crown', I, 50), who accepted only treason, murder and robbery. Of the several writers quoted to us, none (save Stephen) goes so far as to assert that duress neither affords nor should afford a defence to any criminal charge. Similarly, each of the many Codes cited follows the pattern of providing that duress is a defence to all crimes save a specified few, while Section 2.09 of the American Law Institute's Model Penal Code excludes the plea of duress from no criminal charge and in this respect resembles Section 40 of the German Draft Penal Code of 1962.

II. When is the plea of duress available?

Despite the views of old (and not so old) writers, there has been for some years an unquestionable tendency towards progressive latitude in relation to the plea of duress. Thus, it may be invoked in some types of treason (R. v. Purdy (1946) 10 J.Cr.L. 182), in receiving (A.-G. v. Whelan [1934] IR 518), in stealing (R. v. Gill [1963] 1 W.L.R. 841), in malicious damage (R. v. Crutchley, ante), in arson (R. v. Shiartos, noted in R. v. Gill), in unlawful possession of ammunition (Subramaniam v. Public Prosecutor, ante), and in perjury (R. v. Hudson and Taylor [1971] 2 QB 202). Indeed, in the last-mentioned case, Lord Parker, C.J., said (p. 206), that

"... it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused ".

But, as in some types of treason, complicity in murder has, at least until recent times, been put into a category of its own. Hale said (ibid., at p. 50) that

" If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crimes and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent".

And in upholding the plea of duress in answer to a receiving charge, Murnaghan, J., said in A.-G. v. Whelan (ante),

" Murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification ".

And in this context, one should not overlook the eloquent observations of Lord Coleridge, C.J., in Reg. v. Dudley and Stephens (1885) L.R. 14 Q.B.D. 273, at 288, in relation to the defence of necessity:

" It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was ; how awful the suffering ; how hard in such trials to keep the judgment "straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime ".

But even this seemingly clear stream has been made opaque by the decision in Reg. v. Kray (1969) 53 Cr. App. R. 569, where Barry, one of the accused, was charged with being an accessory before the fact to the murder of one McVitie. The Crown's case was that Barry had carried to a certain destination a gun which he well knew Reginald Kray intended to use to murder McVitie. Barry admitted these allegations, but pleaded that he had so acted on the order of the Krays, because he feared for the safety of himself and his family if he disobeyed them. Objections were raised to the admissibility of certain parts of Barry's evidence, but counsel both for the Krays and for the Crown conceded that duress was available to a person charged (as Barry was) with being an accessory before the fact to murder, though not to a person charged as a principal. In dismissing the Kray's appeal against conviction for murder, Widgery, L.J., as he then was, said (at p. 578),

" We are . . . satisfied that Barry had a viable defence . . . that by reason of threats he was so terrified that he ceased to be an independent actor, and that the evidence of violent conduct by the Krays which Barry put before the Court was accordingly relevant and admissible ".

The question that immediately arises is: Can a distinction properly be made between the action of Barry in carrying the murder weapon to the scene of the crime and the action of Lynch in driving Meehan and his criminal colleagues to and from the scene of the shooting and waiting around the corner while the murdering was being committed? Can the styling of the one "accessory before the fact" and the other "principal in the second degree " of itself make any difference to their criminality? If both acted in terror of imminent death or grave injury, should the one go scot free and the other be convicted of murder and receive the mandatory sentence of life imprisonment? Professor J. C. Smith ("A Note on Duress", [1974] Crim. L.R. at 351) has little doubt how these questions should be answered:

" A party who is absent may in fact have played a more significant role in the killing than one who is present and, if both were acting under duress, it would be wrong that the former should be able to rely on that defence and the latter not ... If duress is once admitted as a possible defence to an accessory, then it is difficult to find a logical limit to the availability of the defence ".

III. What is the basis of the plea of duress?

Of the two theories regarding the nature of the plea of duress canvassed below and before this House, I prefer the view of Prof. Glanville Williams ("Criminal Law", p. 751) that,

"True duress is not inconsistent with act and will as a matter of legal definition, the maxim being coactus volui. Fear of violence does not differ in kind from fear of economic ills, fear of displeasing others, or any other determinant of choice; it would be inconvenient to regard a particular type of motive as negativing will " 1

The alternative theory advanced (" Theory 2 ") is that, as a result of his will being overborne by threats of grave violence, the transgressor never forms the criminal intent necessary to constitute the offence with which he is charged, whatever be its nature, which would thus exculpate an actual killer who would otherwise be a principal in the first degree to murder. In my judgment, this will not do. Duress is properly to be regarded as a plea in confession and avoidance, and I respectfully adopt the view of the Lord Chief Justice that -

" Apart altogether from philosophical argument, it seems clear that the defendants Whelan, Gill, Subramaniam, and Hudson intentionally received stolen goods, stole, took possession of ammunition and committed perjury, even though the reason that they did so was that there respective wills were overborne by threats. Their prima facie criminal acts were the result of a conscious choice, although the choice was made unwillingly and because of the threats to which they were subjected ". At the end of the day, the defence of duress is probably best evaluated without reference to its supposed relation to either actus reus or mens rea, for, in the words of Prof. Turpin (1972 Cambridge Law Journal 205), not every morally exculpatory circumstance has a necessary bearing on these legal ingredients of crime ".

It follows that certain observations of Lord Goddard, L.C.J., in R. v. Bourne (1952) Cr. App. R. 125 cannot, in my judgment, be accepted. The appellant sought to upset his conviction for aiding and abetting his wife to have carnal knowledge of a dog, she having testified that she had been so terrorised into submission that she acted entirely against her will. Assuming that, had she been charged as the principal offender, the wife could have pleaded duress, Lord Goddard said (at p. 128),

"It means that she admits that she has committed the crime but prays to be excused from punishment for the consequences of the crime by reason of the duress, and no doubt In those circumstances the law would allow a verdict of Not Guilty to be entered ".

He added that the plea of duress was available to the wife,

"not as showing that no offence had been committed, but as showing that she had no means rea because her will was overborne by threats of imprisonment or violence so that she would be excused from punishment".

But, as Prof. J. Ll. J. Edwards has pointed out ((1953) 69 L.Q.R. 226), it is now well established that where duress applies it must lead to a clean acquittal unless disproved. Professor Cross has also 'made the comment (ibid., at p. 354 et seq.) that the wife in fact and in law committed the actus reus with the mens rea required by the definition of the crime of bestiality, so that Lord Goddard's observation that

" she had no mens rea must be regarded as having been employed to describe an actor whose will was overborne in circumstances which rendered his conduct excusable ".

Why "excusable"? The law makes a concession to human weakness to the extent of allowing a verdict of manslaughter to be returned even though an accused person unlawfully and maliciously killed, if he was provoked to the extent now indicated in section 3 of the Homicide Act, 1957. But he will not be excused so as to be acquitted entirely. And if the charge is other than murder, provocation (however great) can operate only by way of mitigation of punishment and would not of itself, for example, justify a verdict of guilty of contravening section 20 of the Offences against the Person Act 1861 on a charge of causing grievous bodily harm with intent contrary to section 18 of that Act. But if, on the trial of the graver charge, a plea of duress prevailed, it should, on the authorities, result in a complete acquittal, as the Supreme Court of Victoria held in Smyth ([1964] V.R. 737). In A.-G. v. Whelan (ante) Murnaghan, J., said (at p. 526),

"It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal.

Save for the substitution of "excuse" for "justification", we were told, and were referred to, nothing more helpful than that, and the difficulty in reconciling such a view with the words of Lord Coleridge, C.J., when dealing in Dudley and Stephens (ante) with the defence of necessity is as obvious as it is great.

IV. Why should duress not be available in murder?

If the circumstances are such that " the ordinary power of human resistance" is overborne, why should they not render excusable even the unlawful killing of an innocent person? Several reasons have been advanced for asserting that no duress, however terrible, can save such a participator in unlawful killing as the appellant from being convicted of murder. One of these has already been referred to and is epitomised by the observation, of Lord Coleridge, C.J., in Dudley and Stephens (ante., at p. 287) that

" To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it".

Such an approach was elaborately dealt with in S. v. Goliath ([1972] (3) South African L.R., 465), where the Appellate Division held that on a charge of murder compulsion can be a complete defence. In giving the majority judgment, Rumpff, J., developed the submission of defence counsel that,

"The criminal law should not be applied as if it were a blueprint for saintliness, but rather in a manner in which it can be obeyed by the reasonable man , by saying (at p. 480): It is generally accepted . . . that for the ordinary person in general his life is more valuable than that of another. Only those who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified ".

It has also to be remembered that lack of "heroism" may not necessarily be selfishly self-directed, for the duress exerted may well extend to and threaten the lives and safety of others, and, as has been said, "... when a third person's life is also at stake even the path of heroism is obscure " (Wechsler and Michael, "A Rationale of the Law of Homicide", (1937) 37 Col. L.R. 738). That these are not idle considerations is demonstrated by R. v. Hurley and Murray [1967] V.R. 526, where the wife of one of two accused (charged with having been accessories after the fact to the felony of escape) was already a hostage of the oppressors. In such circumstances, what, it may be asked, is the nature of the "heroism" which the law may properly demand?
A second ground advanced in support of the proposition that duress affords no defence in murder is said to have public policy as its basis. Murder, it is rightly said, is a crime so grave that no facilities should be afforded to the murderer to escape conviction and punishment. It is then added that duress is a plea easy to raise and that (the onus to destroy it being upon the prosecution) it may prove impossible to rebut it, however dark the suspicion that it is not well-founded, and that in this way the murderer may well escape retribution. But this is true of many other pleas which extenuate or even extinguish criminal culpability - drunkenness, for example, as destroying criminal intent, or an alibi which may serve to eliminate criminal involvement of any kind - and no course is open other than to repose confidence in the tribunal of fact to discharge its duty of scrutinising with care the evidence adduced. In this respect, the risk of a miscarriage of justice by a guilty man being acquitted is no greater in murder trials than in those other cases in which the plea of duress is, on the authorities, clearly available, despite their gravity - for example, even in attempted murder, where an intent actually to kill is an essential ingredient. Nor should the present grave state of affairs prevailing in Northern Ireland, to which prosecuting counsel very understandably referred, lead this House to arrive at a conclusion different from that which would be proper were Ireland trouble-free. Those who fear that by accepting this appellant's submission on duress an easy road is opened for bogus defences would do well to have in mind the observations of Dixon, J. in Thomas v. The King (1937 59 C.L.R. 279 at 309) cited with approval by Lord Reid in Reg v. Warner (1969 2 A.C. at p. 274).
A further ground advanced in the present case is that, while both Sec. 47 of the Criminal Justice Act 1925 and Sec. 37(1) of the Criminal Justice Act (Northern Ireland) 1945 provide a defence to a wife charged with a criminal offence if she proves that it was committed in the presence of, and under the coercion of, her husband, such a defence does not extent to treason or murder. It is accordingly said that, Parliament having so recently rendered coercion unavailable in those two instances, it would be incongruous, to say the least, were the courts now to hold that duress could excuse murder; and this seemingly led the Lord Chief Justice to say in the present case, "We appreciate the force of counsel's appeals to logic and morality but consider that only Parliament can alter what we conceive to be the relevant law". But, as to the Act of 1925, I favour the view of Prof. Glanville Williams ("Criminal Law", p. 765) that

"The Act can be regarded as merely an incomplete statement of the common law, and the common law still exists to supplement its deficiency ",

and the same may be said of the Northern Ireland Act of 1945. Smith and Hogan (3rd Ed., 169) have pointed out that coercion is a wider defence than duress (" because , as the Solicitor-General said during the debate on the Bill, coercion imports coercion in the moral, possibly even in the spiritual realm, whereas compulsion imports something only in the physical realm"), and that the 1925 Act renders it available to wives in addition to the general defence of duress. It would therefore not be right to say that, because Parliament has withheld the wider defence of coercion from charges of complicity in murder, the narrower defence of duress should also be unavailable in a murder trial.

Prosecuting counsel urged upon this House that, even were we to regard it as possibly appropriate to allow duress as a defence to murder, we should leave the matter to be dealt with by Parliament, and in this context invoked certain observations of the Lord Chancellor in Reg. v. Hyam [1974] 2 W.L.R. 607, at 613. But my noble and learned friend Lord Hailsham of Saint Marylebone was there dealing with a topic (the criminal intent necessary to constitute murder) upon which authoritative pronouncements have several times been made by this House, whereas the questions certified in the present appeal have never hitherto been considered here and, as far as I am aware, have never even been the subject of obiter dicta. We are therefore called upon for the first time to make an unfettered decision on a point of pure common law in accordance with basic common law principles. In these circumstances, with respect, I find it quite unacceptable to hold that, were this House otherwise inclined to adopt a view favourable to the Appellant, it should dismiss his appeal and, presumably, any other appeals of a like kind until the Legislature dealt with the matter.
I therefore turn at long last to consider whether, as the learned trial judge thought, "The whole weight of judicial writing is against the availability of duress as a defence on a charge of murder ", and whether, if so, that should lead this House to the same conclusion. The speeches of my noble and learned friends amply illustrate the frequency with which judges in this country have observed that duress does not extend as a defence to murder, but, with but one solitary exception, these observations were all obiter dicta, being made in cases where murder was not charged. The one exception cited to this House is Reg. v. Tyler and Price (1838, ante), where two men accused of murder sought to excuse their participation in the act of killing performed by one Thom on the ground of duress. I quoted at an earlier stage the widely expressed observations of Lord Denman, C.J., in charging the jury, and they amount to a direction that duress was no defence. But, as Prof. Glanville Williams has pointed out (" Criminal Law ", p. 759),

". . . the same result could have been reached in Tyler even if murder is not excepted from the defence of duress. There appears to have been no evidence that Tyler went in fear of death (which would be the minimum necessary to justify murder); nor was any attempt made to show that Tyler could not escape from the gang. Also, the evidence seemed to show that Tyler had voluntarily joined a criminal organisation knowing of its purpose; and one who does this has no cause for complaint if he is debarred from the defence of duress in respect of threats afterwards made to him ".

One would therefore prefer to have a more clear-cut decision before concluding that in no circumstances is duress available in murder, and the decision of the Court of Criminal Appeal in Reg. v. Kray (ante) has to be borne in mind. Prof. Glanville Williams has said (" Criminal Law ", 753) that in Sephakela v. The Queen [1954] High Commission Territories Law Reports, 60, where the charge was one of ritual murder,

"the Privy Council assumed that duress was a defence . . .".

But I respectfully agree with the Lord Chief Justice in the present case that the Board made no such assumption and expressly reserved their opinion on the point. It has further to be observed that the Privy Council was there enunciating the Roman-Dutch law prevailing in Basutoland.
In Reg. v. Brown and Morley [1968] S.A.S.R. 467 the majority of the Supreme Court of South Australia held that a principal in the second degree who performs an act which he intends to be in furtherance of a proposed murder which is in fact carried out cannot be excused by reason of his having acted under the compulsion of threats by his co-accused (the actual killer) against himself, his wife and his parents. But Bray, C. J., differed from the majority on, as he put it,

" the question of the legal effect of duress as a defence to a charge of minor participation in murder . . .",

and, in the course of an illuminating review of the relevant material, judicial and otherwise, said (p. 493),

". . . the authorities which show that duress may be a defence to some types of treasonable act do not necessarily prove to my mind that it is a defence to all types of treasonable act. If this is so, then conversely it may be that authorities which say or appear to say that duress is not a defence to murder generally do not necessarily prove that it is not a defence to any conceivable type of complicity in murder, however minor ".

And then, taking a hypothetical example which has striking similarity to the defence presented in the present case, the Chief Justice said (p. 494),

" It would seem hard ... if an innocent passer-by seized in the street by a gang of criminals visibly engaged in robbery and murder in a shop and compelled at the point of a gun to issue misleading comments to the public, or an innocent driver compelled at the point of a gun to convey the murderer to the victim, were to have no defence. Are there any authorities which compel us to hold that he would not? "

Continuing his review, he observed en route (at p. 497),

". . . in my view, the direction of the learned judge that threats can never be an excuse for the taking of an active part in murder, such as coughing to disguise the approach of the murderer, was too wide ". His conclusion (p. 499) was that . . . the trend of the later cases, general reasoning, and the express authority of the Privy Council in Sephakela's Case prevent the acceptance of the simple proposition that no type of duress "can ever afford a defence to the type of complicity in murder. I repeat also that, as at present advised, I do not think duress could constitute a defence to one who actually kills or attempts to kill the victim ".

It appears to me, with respect, that the reliance placed by the learned Chief Justice on Sephakela's Case is misplaced, though I concur when he says (p. 496) that

"There is nothing, in my view, in Sephakela's Case to prevent us from holding that there can be circumstances in which duress can be a defence to a person charged with murder as a principal in the second degree ". Such was the role of Lynch, and this House is accordingly not now called upon to deal with the reservation of the Chief Justice in relation to a person who under duress actually kills or attempts to kill the victim ".

As to the actual killer, while I naturally seek to refrain from prejudging future cases, I think it right to say that I agree with the observation of Smith and Hogan (" Criminal Law ", 3rd Ed., p. 166) that,

" The difficulty about adopting a distinction between the principal and secondary parties as a rule of law is that the contribution of the secondary party to the death may be no less significant than that of the principal".

And as to attempted killing, it is to be noted that in Reg. v. Fegan (unreported, 1974) MacDermott, J., held in Northern Ireland that duress is available on a charge of aiding and abetting in attempted murder, the Crown having conceded the point, and that in the present case the Lord Chief Justice expressed the view that such is the law. The 1972 decision of the Appellate Division of the South African Supreme Court in S. v. Goliath, that duress (or compulsion) may constitute a defence to a murder charge has already been referred to, but it does not appear to have been cited to the appellate court in the present case.

V. Conclusion

Having considered the available material to the best of my ability, I find myself unable to accept that any ground in law, logic, morals or public policy has been established to justify withholding the plea of duress in the present cas6. To say, as Murnaghan, J., did, in A.-G. v. Whelan (ante), that

"Murder is a crime so heinous that... in such a case the strongest duress would not be any justification"

is, with respect, to beg the whole question. That murder has a unique gravity most would regard as not open to doubt, but the degree of legal criminality or blameworthiness involved in participation therein depends upon all the circumstances of the particular case, just as it does whenever the actus reus and the mens rea necessary to constitute any other offence are established. In homicide, the law already recognises degrees of criminality, notwithstanding that unlawful killing with malice aforethought has unquestionably taken place. In non-homicidal cases, the degree of criminality or blameworthiness can and should be reflected in the punishment meted out, a course which the mandatory life sentence for murder prohibits. And in relation to all offences ( "except possibly treason and murder as a "principal"", Lord Parker, C.J., said in Reg. v. Hudson and Taylor ante), a person committing them is entitled to be completely acquitted if at the material time he was acting under the threat of death or serious bodily harm. Prof. J. C. Smith has rightly observed ([1974] Crim. L.R. 352) that,

"To allow a defence to crime is not to express approval of the action of the accused person but only to declare that it does not merit condemnation and punishment".

For the reasons I have sought to advance, I can find no valid ground for preventing the Appellant Lynch from presenting the plea of duress, and I would therefore be for allowing his appeal. By doing so, I consider that this House would be paying due regard to those "contemporary" views of what is just, what is moral, what is humane " which my noble and learned friend, Lord Diplock, described in Reg. v. Hyam (ante, at p. 631) as constituting

"the underlying principle which is the justification for retaining the common law as a living source of rules binding upon all members of contemporary society in England ".

We were invited by prosecuting counsel to apply, if necessary, the proviso to Sec. 9(1) of the Criminal Appeal (Northern Ireland) Act, 1968, on the ground that so unsatisfactory was the evidence of duress that no miscarriage of justice resulted from its having been withdrawn from the jury. But, for my part, I find that invitation impossible of acceptance, and this particularly in the light of the opinion expressed by the Lord Chief Justice that the available evidence raised " a clear issue of duress ".
There remains to be considered the application of the prosecution pursuant to Sec. 13(1) of the 1968 Act that, in the event of the appeal being allowed (as I think it should), a new trial be ordered. Unlike Sec. 7(1) of the Criminal Appeal Act, 1968, that provision does not restrict the power to order a retrial to cases where further evidence has been received, but enables that course to be followed wherever "it appears to the court that the interests of justice so require". Lynch has been in custody certainly since his conviction on June 20th, 1972, and it has therefore to be borne in mind that he has been incarcerated for a substantial period. But a dreadful crime was committed, the Appellant on his own showing played a substantial and vital part in its accomplishment, and the interests of justice require that all criminally responsible therefore should be duly punished. Despite the passage of time, in my judgment those interests require that the Appellant be now afforded the opportunity of having considered by a court the defence of duress upon which he sought a verdict at his initial trial. It would be undesirable for me to say more than that I consider that there are certain features of that defence which calls for the most careful scrutiny. I would therefore be for ordering a new trial pursuant to Sec. 13 and would remit the case to the Court of Appeal of Northern Ireland so that, pursuant to Sec. 14(2), they may make such orders in relation to the retrial as appear necessary or expedient, the Appellant being ordered to remain in custody meanwhile.

318507 Dd 896252 120 3/75 StS

Director of Public
Prosecutions for Northern Ireland
(Respondent) v. Lynch (Appellant) (on Appeal from the Court of Criminal Appeal in Northern Ireland).

Die Mercurii, 12° Martii 1975

Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions for Northern Ireland against Lynch (on Appeal from the Court of Criminal Appeal in Northern Ireland), That the Committee had heard Counsel, as well on Monday the 18th, as on Tuesday the 19th, Wednesday the 20th, Thursday the 21st, Monday the 25th, Tuesday the 26th and Wednesday the 27th, days of November last, upon the Petition and Appeal of Joseph Lynch, now detained at Her Majesty's Prison Maze, Lisburn, County Antrim, Northern Ireland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal in Northern Ireland of the 27th of June 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public-Prosecutions for Northern Ireland, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Criminal Appeal in Northern Ireland of the 27th day of June 1974, complained of in the said Appeal, be, and the same is hereby, Discharged, and that the conviction imposed by the Honourable Mr. Justice Gibson at the Belfast City Commission on the 20th day of June 1972 be, and the same is hereby. Quashed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Criminal Appeal in Northern Ireland with a Direction That a new Trial be had pursuant to section 13 of the Criminal Appeal (Northern Ireland) Act 1968, and with a further Direction That the said Court do proceed in accordance with the provisions of section 14 of the said Act: And it is also further Ordered, That the Appellant do remain in custody pending a decision by that Court.