Critically analyse the ruling of the House of Lords in ‘Howe [1987] 1 AC 417’ that duress is not a defence to murder.

IntroductionIt will be critic aloney analysed in this study whether the ruling of the Ho riding habit of Lords in Howe 1987 1 AC 417 was acceptable and whether the tone that gyves is not a defense to murder should continue to apply. Various academic opinion will be analysed and a review as to whether many change ought to be made will be considered. Thus, it will be demonstrated that although chains should not be a complete defence to murder, it should be a partial defence as there are some situations which lead to injustice on the al-Qaida that this defence is not available to them.1 primary(prenominal) BodyDuress is a common law defence that seeks to protect individuals that bring forth been forced or compelled to commit a crime. The defence of duress provides an excommunication to the rule that a person shall be held responsible for any crimes they commit on the primer coat that they had not done so voluntarily. As the defence is ease up to abuse, caution needs to be take n by the court of laws when allowing the defence to be submitted. Accordingly, restrictions are needed to ensure that the level of threat the defendant has been subjected to is not menial. Hence, as noted by Spain the defence of duress fails to recognise the reality that one will not need to be subjected to a specific type or level of threat for ones will to be overborne.2 Furthermore, it is also important that the crime is not disproportionate to the threat in order for this defence to prove successful. This will prevent an abuse of the defence from occurring as individuals will not be able to take advantage of the defence in all circumstances.An example of this can be seen in relation to murder where the defence of duress is not generally accepted by the Courts. This is because, it is difficult to persuade the Court that a person has been forced or compelled into committing a crime when the harm that has been caused, is greater than the harm that has been threated. In deciding wh ether a defendant can use this defence, nonetheless, the Courts will have to use the proportionality test, which is both subjective and objective. In R v Howe3 it was held that a jury should consider whether a) the defendant acted in this route because he honestly believed that his life was in immediate danger and b) a reasonable person of the same characteristics of the defendant would have acted in the same way. Here, it was, nonetheless, nominate that duress could not be a defence to murder. This decision has been the subject of much controversy over the years with conflicting views as to whether the defence of duress should in fact apply to murder.4On the one hand, it is believed by Shankland that duress should serve as a valid defence to murder on the basis that a murder which has been committed as a result of duress should be distinguished from a murder that was pre-meditated.5 On the other hand, it was said by Toczek that defendants should not be able to rely upon the dures s defence for murder as this could not be deemed a reasonable belief as inevitable by the Court in Howe.6 Accordingly, it would be difficult to establish that a persons belief to commit murder was reasonable on the basis that they were subjected to duress. The Court in the more recent case of R v Hasan7 agreed with the Howe decision and made it even more difficult for the defence of duress to be successfully raised in all criminal cases. Here, it was argued that rather than merely finding that the defendant had a reasonable belief, it must be delivern that they had an literal belief in the efficacy of the threat which compelled the defendant to commit the act.Arguably, it became apparent from this decision that rather than defendants demonstrating that they had a reasonable belief, they are now required to show that the reasonable belief was also a genuine one. The legal philosophy Commission have also expressed their concerns as to whether duress should apply to murder and have considered including duress as a partial defence to murder.8 This would mean that first period murder could be reduced to second degree murder, whilst second degree murder could be reduced to manslaughter. Whilst this would provide some protection to those individuals who have authentically feared for their own or families life in committing the crime, it would prevent the scope cosmos broadened in any case far. Accordingly, it has been said that moral involuntariness should be excused and that regardless as to what crime the defendant had committed, duress should be overt of being used as a defence.9 Hence, it is said that the defendants fear or lack of courage should be given due consideration as these are central to the rational of the defendant. completionOverall, it is evident that there are mixed opinions as to whether duress should be used as a defence to murder, yet whether this would broaden the scope too far is likely. This is because the defence would most likely be open to abuse if it could be used in circumstances such as this. Individuals would be capable of demonstrating that they had been subjected to duress in order to escape criminal liability for murder. This would be unjust in many situations as it cannot be said that the life of a human being is proportionate to a threat that has been made. Nevertheless, in order to ensure that complete liability is not imposed upon defendants in circumstances where they genuinely feared for their life, it could be said that duress should be used as a partial defence to murder. This would prevent defendants from completely escaping liability, yet it would provide the Courts with some permissiveness when considering certain cases that would require a defence, such as domestic violence victims.Bibliography Books E Spain., The Role of Emotions in Criminal virtue Defences Duress, Necessity and Lesser Evils, (Cambridge University Press, 2011).The Law Commission., Murder, Manslaughter and Infanticide Pro ject 6 of the Ninth Programme of Law Reform Homicide, (The Stationary Office, 2006).Journals G Williams., Necessity Duress of Circumstances or Moral Involuntariness? Common Law World Review, stack 43, Issue 1, 1.L Toczek., A Case of Duress The New Law Journal, Volume 155, Issue 7173, 612.M Sorarajah., Duress and Murder in Commonwealth Criminal Law (1981) The International and Comparative Law Quarterly, Volume 30, No 3, 660-661.R Shankland., Duress and the Underlying Felony (2009) Journal of Criminal Law and Criminology, Volume 99, Issue 1227.Cases R v Hasan 2005 UKHL 22 R v Howe 1987 1 AC 417