157 / 336
(Lowry C. J., Curran L. J. and O'Donnel, J.).
While Lord Morris of Borth-y-Gest, Lord Wilber-
force and Lord Edmund Davies agreed in the House of
Lords that duress could be a defence for aiders and
abettors of murder, dissenting opinions were entered
by Lord Simon of Glaisdale and Lord Kilbrandon.
In his judgment, Lord Morris said the jury's verdict
showed they were satisfied that Lynch participated
actively in the enterprise with the knowledge that
death or serious injury was intended by those he
accompanied. The question was whether the issue of
duress should have been left to the jury.
Duress, he said, must never be allowed to be the
easy answer of those who could devise no other
explanation for their conduct, of those who could
have readily avoided the dominance of others, nor
of those who allowed themselves to be at the disposal
or under the sway of some gangster tyrant.
Th e law had to take the "commonsense view" and
had recognised that there could be situations when
duress could be put forward as a defence.
Self-preservation recognised
"If someone is forced at gunpoint either to be in-
active 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 sybmits
and obeys."
He thought a distinction could be made between
duress as a defence for the aider and abettor of murder,
and duress as a defence for the actual killer.
If to save his own life a person drove a car or carried
a gun, he might do so in the hope that a killing might
still somehow be averted. But if a person was being
forced to pull the trigger or otherwise do the killing,
Lord Morris thought that before allowing duress as a
defence, "It may be that the law will have to call a
halt."
General reasoning and requirements of justice led
him to the conclusion, however, that duress should be
a defence for a person charged with aiding and abetting
murder.
Agreeing, Lord Wilberforce said that if duress was
not available as a defence in these circumstances, it
meant that a person taken from his home at gunpoint
and made to drive armed men on a criminal enterprise,
with the certainty of being shot if he tried to assist
or escape, was liable to be convicted of murder.
"The same would apply to a bystander in a street,
or the owner of a car, similarly conscripted, once it is
shown that he or she, new the nature of the
enterprise."
Such examples of the possible involvement of persons
whom the normal man would regard as without guilt,
under threat of death or violence, in violent enterprises
were unfortunately far from fanciful at this time.
Did the law require these people to be charged with
murder and call for their conviction?
Dissenters say law can be changed with sanction of
Parliament
Concurring, Lord Edmund Davies said he found
himself unable to accept that any ground in law, logic,
morals or public policy had been established to justify
withholding the plea of duress in the present case.
In a dissenting judgment, Lord Simon questioned
how an arbitrary line drawn between duress as a
defence for aider and abbettors of murder but not for
the actual killer could be justified.
Lord Simon suggested that the House could be
"inscribing a charter for terrorists, gang-leaders and
kidnappers." Both he and Lord Kilbrandon agreed
that any such fundamental change in the law should
be left to Parliament.
This branch of the law was closely bound up with
matters of policy relating to public safety, and these
were more fitly weighed in Parliament on the advice of
the Executive than developed in courts of law.
Lord Kilbrandon, who also dissented, said he was
convinced that the grounds on which the majority
proposed to quash the conviction involved changes
in the law that were outside the proper functions of
the Law Lords.
Like Lord Simon, Lord Kilbrandon suggested that
if the solution ultimately found was that duress or
necessity should only go as defences towards mitigat-
ing penalties for crimes, it would be perfectly reason-
able to make duress or necessity grounds for declaring
diminishing responsibility in murder charges. This
would mean that where the defence was established
in murder charges, a verdict of manslaughter would
be returned, and the penalty left at large instead of
the court having to impose a mandatory life sentence
as it now must for murder.
In a working paper last year on which it sought
criticism and comment, the Law Commission suggested
that duress should be a possible defence to all crimes,
including murder.
But it would not be available if the defendant had
joined an association or conspiracy which was of such
a character that he was aware he might be compelled
to participate in an offence of the type with which he
was charged.
[Lynch v. Director of Public Prosecutions of
Northern Ireland — House of Lords — (1975) 1, All
E.R. 913.]
155