R v Howe

Factual and Procedural Background

Four separate appeals, arising from two unrelated murder trials, were heard together in the House of Lords. Each Appellant had unsuccessfully challenged his conviction in the Court of Appeal (Criminal Division). When granting leave to appeal, the Court of Appeal certified three questions of general public importance concerning the scope of the defence of duress in murder cases.

• Case 1 (The City Crown Court): Appellants A, B, C and D were tried for the murders of two victims (committed on consecutive days in October 1983) and for conspiracy to murder a third intended victim. The jury convicted all except two co-defendants who had pleaded guilty earlier.
• Case 2 (Central Criminal Court): Appellants E and F were tried for the July 1983 murder of a single victim, alleged to have been motivated by a desire to prevent the victim testifying against Appellant F. The jury convicted both men.

The Court of Appeal dismissed all four appeals ([1986] 1 Q.B. 626) but certified three questions. The House of Lords heard argument over four days in November 1986 and delivered judgment on 19 February 1987.

Legal Issues Presented

1. Is duress available as a defence to a person charged with murder as a principal in the first degree (the actual killer)?
2. Can an individual who incites or procures another, by duress, to commit a killing be convicted of murder if the actual killer is acquitted by reason of duress?
3. Does the defence of duress fail if the prosecution prove that a person of reasonable firmness, sharing the defendant’s characteristics, would not have yielded to the threats?

Arguments of the Parties

Appellants’ Arguments

• The logical consequence of Director of Public Prosecutions for Northern Ireland v. Lynch should be an extension of the duress defence to actual killers; any distinction between principals in the first and second degree is irrational.
• If duress is unavailable to the killer, parity demands that it also be unavailable to aiders and abettors; therefore the certified question 2 should be answered “no”.
• The proper test for duress is subjective; inserting an objective “reasonable firmness” limb unfairly deprives vulnerable defendants of the defence.

Respondent’s (The Prosecutor’s) Arguments

• Lynch was wrongly decided and should not be extended; the historic rule denying duress in murder should be restored.
• Public policy demands that the law never sanction the deliberate taking of an innocent life, whatever threats are made.
• The objective element articulated in Reg. v. Graham is crucial to prevent abuse of the defence.

Table of Precedents Cited

Court's Reasoning and Analysis

The House undertook a comprehensive review of the historical and contemporary authorities on duress:

1. Historical consensus. From Hale and Blackstone through to modern writers, the common-law rule denied duress in cases of homicide. The court considered this a “venerable tradition.”
2. Evaluation of Lynch. The majority concluded that Lynch had created an illogical distinction between principals in the first and second degree. Invoking the 1966 Practice Statement, the House declared the decision “unsatisfactory” and overruled it.
3. No principled half-way house. Suggestions that duress could reduce murder to manslaughter (analogous to provocation) were rejected as conceptually incoherent and better suited to legislative, not judicial, reform.
4. Public-policy considerations. In an era of terrorism and organised violence, extending duress would endanger innocent lives and undermine the law’s protection of life.
5. Objective test affirmed. The court endorsed the Graham formulation: a threat must be such that a person of reasonable firmness sharing the defendant’s characteristics would have yielded. Purely subjective tests were rejected.
6. Accessory liability. Overturning Richards, the House held that an instigator can be convicted of murder even if the actual killer is acquitted on grounds of duress; moral culpability turns on the instigator’s intent, not on the principal’s partial defence.

Holding and Implications

Holding: The appeals are DISMISSED. The certified questions are answered as follows: (1) No – duress is not a defence to murder for the actual killer; (2) Yes – an instigator may still be convicted of murder even if the killer is acquitted by duress; (3) Yes – the defence of duress requires that a person of reasonable firmness would have succumbed.

Implications: The ruling restores the orthodox position that duress is unavailable in any murder prosecution, overruling Lynch and narrowing any future scope for the defence. It solidifies the objective “reasonable firmness” standard and clarifies that accessories or instigators cannot shelter behind the principal’s partial defence. No new statutory precedent is set, but the decision signals that further change in this area is for Parliament, not the courts.