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 critically analysed in this study whether the ruling of the Ho procedure of Lords in Howe 1987 1 AC 417 was accept fitted and whether the nonion that imprisonment is not a defense mechanism to murder should continue to apply. Various academic opinion will be analysed and a review as to whether some change ought to be do will be considered. Thus, it will be demonstrated that although duress should not be a complete demurral to murder, it should be a partial(p) demurral as there ar some situations which lead to seediness on the terms that this defense mechanism is not available to them.1Main carcass durance is a common law falsifying that seeks to protect individuals that deliver been forced or compelled to frame a execration. The defence force of duress provides an excommunication to the rule that a person shall be held responsible for any crimes they commit on the basis that they had not done so voluntarily. As the defence is open to abuse, c aution needs to be taken by the Courts 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 acknowledge 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 disproportional to the threat in order for this defence to prove successful. This will baffle 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 bottomland 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 b een threated. In deciding whether 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 way because he honestly believed that his life was in immediate risk of infection and b) a reasonable person of the same characteristics of the defendant would have acted in the same way. Here, it was, nonetheless, found that duress could not be a defence to murder. This decision has been the subject of much controversy over the years with counterpoint 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 legal defence to murder on the basis that a murder which has been pull as a result of duress should be distinguished from a murder that was pre-meditated.5 On the other hand, it was state by Toczek that defendants should n ot be able to rely upon the duress defence for murder as this could not be deemed a reasonable belief as required 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 nefarious cases. Here, it was argued that rather than merely finding that the defendant had a reasonable belief, it must be sh admit that they had an actual 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 police force Commission have also expressed their concerns as to whether duress shoul d apply to murder and have considered including duress as a partial defence to murder.8 This would mean that first degree 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 genuinely feared for their own or families life in committing the crime, it would prevent the scope being offered as well as 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 capable 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 wise of the defendant.ConclusionOverall, 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 m ost likely be open to abuse if it could be used in circumstances such(prenominal) as this. Individuals would be capable of demonstrating that they had been subjected to duress in order to pass criminal indebtedness for murder. This would be unjust in many situations as it cannot be said that the life of a human being is symmetrical 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 leeway when considering trusted cases that would require a defence, such as domestic violence victims.Bibliography Books E Spain., The Role of Emotions in Criminal Law Defences Duress, Necessity and Lesser Evils, (Cambridge University Press, 2011).The Law Commission., Murder, Manslaughter and In fanticide Project 6 of the Ninth Programme of Law Reform Homicide, (The unmoving Office, 2006). ledgers G Williams., Necessity Duress of Circumstances or Moral Involuntariness? habitual Law World Review, Volume 43, Issue 1, 1.L Toczek., A chemise of Duress The New Law Journal, Volume 155, Issue 7173, 612.M Sorarajah., Duress and Murder in Commonwealth Criminal Law (1981) The International and relative 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