R v Howe [1987] AC 417 (HL) is a leading decision of the House of Lords on the defence of duress in cases of murder. The case firmly established that duress is not available as a defence to a charge of murder, whether the accused is the principal offender or a secondary party.
The ruling in R v Howe reinforced the absolute value placed on human life in English criminal law and clarified the limits of defences based on threats or coercion.
This case brief explains the facts, issues, decision, and legal principles emerging from R v Howe, strictly based on the reported material.
Citation
R v Howe [1987] AC 417 (HL)
Also reported as:
- [1987] 2 WLR 568
- [1987] 1 All ER 771
- (1987) 85 Cr App R 32
- (1987) 151 JP 265
- [1987] Crim LR 480
Jurisdiction: House of Lords (United Kingdom)
Key topics: Murder, Duress, Duress as a Defence, Manslaughter
Facts of R v Howe
The decision in R v Howe concerned two related cases which were heard together.
The First Case: Howe and Bannister
In the first case, the appellants, Howe and Bannister, were charged with two counts of murder and one count of conspiracy to murder. They, together with a man referred to as M, and the victim, were driven by M to an isolated area. There, Howe and Bannister assaulted the victim, and M killed him.
In a separate incident, three individuals jointly strangled another victim. A third intended victim managed to escape. The victims suffered torture and abuse before being killed.
Howe and Bannister asserted that they acted under duress. They claimed that M was a violent individual who threatened them and that they feared for their own lives if they did not comply with his directions. They maintained that they participated in the killings because they believed that refusal would result in their own deaths.
Despite this defence, they were convicted on the two counts of murder and on the count of conspiracy to murder.
The Second Case: Burke and Clarkson
The second case involved Burke and Clarkson, who were charged with the murder of a man killed by Burke. Burke argued that he had agreed to kill the victim because he feared that Clarkson would kill him if he did not comply. He also claimed that the gun discharged accidentally.
The trial judge directed the jury that Burke could not rely on duress as a defence to murder. However, the judge left it to the jury to determine whether duress might mean that Burke’s act was unintentional, which could reduce the offence to manslaughter.
Both Burke and Clarkson were ultimately convicted of murder.
Legal Issues
The House of Lords in R v Howe was required to determine the following issues:
- Whether duress is available as a defence to a charge of murder, either where the accused acted to protect his own life or the life of his family.
- Whether duress is available to a person who participated in the murder as a principal in the second degree.
- Whether the conviction of a person exercising duress for murder can be maintained if the person acting under duress is convicted only of manslaughter.
- How duress is to be distinguished from the defence of necessity in serious crimes.
These issues required the court to consider both doctrinal criminal law principles and broader public policy concerns.
R v Howe Judgement
The House of Lords unanimously dismissed the appeals.
In R v Howe, it was held that duress is not available as a defence to a charge of murder. This rule applies regardless of whether the accused acted to protect his own life or the life of his family. It also applies whether the accused was the principal offender or a secondary party participating in the killing.
The leading judgement was delivered by Lord Hailsham LC. The court emphasised that allowing duress as a defence to murder would undermine the absolute value placed on human life in English law. Public policy requires that innocent life be protected, even where an accused person acts under threat.
The House of Lords therefore confirmed that a person who kills under threat of death or serious harm cannot rely on duress as a defence to murder.
On the second issue, the court held that if a person acting under duress is convicted of manslaughter, the person exercising duress may still be convicted of murder. The conviction of the principal exercising duress is not affected by the lesser conviction of the person acting under threat.
The question of whether duress could be a defence to attempted murder was left open in R v Howe. However, the principle was later extended to attempted murder in R v Gotts [1992] 2 AC 412.
Legal Principles
The decision in R v Howe clarified and reinforced several important principles in English criminal law.
Requirements of Duress
The defence of duress requires:
- An immediate threat of death or serious bodily harm.
- A reasonable belief that the threat will be carried out.
These elements were acknowledged in the case. However, even where such requirements are satisfied, duress cannot be relied upon as a defence to murder.
Duress Not Available for Murder
The central principle established in R v Howe is that duress is not a defence to murder. This prohibition is absolute. It applies:
- To those who directly commit the killing.
- To those who assist or participate as secondary parties.
The House of Lords made clear that personal fear for one’s own life, or for the life of family members, does not justify the intentional killing of an innocent person.
Public Policy and the Sanctity of Life
A major aspect of the reasoning in R v Howe was grounded in public policy. The court stressed the sanctity of human life. English criminal law places the highest value on the protection of innocent life.
Allowing duress as a defence to murder would, in the court’s view, compromise that principle. The law therefore chooses to protect innocent victims over excusing those who kill under threat.
Distinction Between Duress and Necessity
The House of Lords distinguished duress from the defence of necessity. While duress arises from threats made by another person, necessity involves circumstances where a defendant claims that committing an offence was required to avoid a greater harm.
In R v Howe, the court acknowledged that necessity may potentially apply in exceptional cases. However, duress cannot be invoked as a defence to murder.
Conclusion
R v Howe [1987] AC 417 (HL) definitively established that duress is not a defence to murder in English law. The House of Lords held that neither fear for one’s own life nor threats against family members can justify intentional killing. This rule applies to both principal offenders and secondary parties.
The decision emphasised the sanctity of human life and the importance of public policy in shaping criminal law defences. By rejecting duress as a defence to murder, R v Howe reinforced the absolute protection afforded to innocent life.
As a result, R v Howe remains a leading authority on duress and homicide, setting a clear and enduring boundary within English criminal law.