The Gazette 1975

(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.]

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