R v Howe

Background:

• Howe and Bailey (19) and Bannister (20) were acting under Murray (35)
• The 1st murder victim was Elgar (17), whom was a driver of Murray. Murray instructed Howe and Bannister to beat Elgar as he thought he was a ‘grass’. He was later stripped naked, sexually assaulted a numerous amount of times, and finally murdered by Bailey.
• Howe, Bailey and Bannister argued that they only did what Murray told them to do, because they were scared that the same thing would happen to them (duress)
• The prosecution claimed that Elgar’s death was a result of Bailey strangling him, but it is believed that Elgar would of died later from the kicks and bruises that Howe and Bannister had inflicted on him. 
• The same thing happened with another young man – Pollitt (19). There was also an attempt of murder of Redfern, but he managed to escape in time. 

The problems of this case:There were 3 questions of general public importance linking to the appeal of this case:

• (1) Is duress available as a defense to a person charged with murder as a principal in the first degree (the actual killer)?
• (2) Can one who incites or procures by duress another to kill or to be a party to a killing be convicted of murder if that other is acquitted by reason of duress?
• (3) Does the defense of duress fail if the prosecution prove that a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats as did the defendant?

Decisions:

• The Lords decided in the end that duress isn’t a good enough of a defense for committing a murder (or in this case multiple murders). 
• They said that it was the defendants fault in the first place because he fell under the evil influence of Murray and as a result of this Howe had killed and assaulted these young men.
• The Lords also stated that duress shouldn’t be used as a defense to someone who has  been charged with attempted murder.
• The case of R v Gotts (1992) used the precedent of this case to decide its outcome. 

Ratio Decidendi: The defence of duress is not available for murder
Obiter dicta - The defence should not be available to one who attempts murder.

“We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it. The sanctity of human life lies at the root of this ideal and I would do nothing to undermine it, be it ever so slight. Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to prove an intent to cause really serious injury. It can not be right to allow the defence to one who may be more intent upon taking a life than the murderer.”