By Amy Rees - Law Student @ Churchill College, Cambridge
Imagine someone puts a gun to your head and tells you to shoot a stranger or they’ll shoot you. Would you do it? Would your answer change if you were told to shoot a child? The law doesn’t see a difference between these scenarios. Either way, if you did it, you would be guilty of murder.
Let’s take a look at how the defence of duress by threats works. I put a gun to your head and tell you to rob a bank, which you then go and do. You are prima facie guilty of theft, but you might have a defence of duress. R v Graham (R v Gardiner  1 All ER 801) tells us that there will be a defence if:
You reasonably believe that you or someone you feel responsible for will be killed or seriously injured if you do not act.
A sober person of reasonable firmness, with your characteristics, would have acted in the same way.
The defence will apply when you were faced with a legitimate threat that an ordinary person would have responded to in the same way.
However, the defence of duress never applies to murder – no matter the circumstances. There have been several judicial attempts to justify this, although plenty of judges are also against the rule. The main justification comes from Lord Hailsham in Howe, Burke and Bannister (R v Howe  AC 417). He said that ‘an ordinary man of reasonable fortitude’ is ‘supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own’. In the same case, Lord Griffiths states that ‘the sanctity of human life lies at the root of this ideal’ and that ‘we face a rising tide of violence and terrorism against which the law must stand firm’. We can see the rationale behind the rule here – a desire to preserve life above all.
This position has been heavily criticised. The Law Commission recommended as far back as 1977 to include duress as a defence to murder. Lord Hailsham’s idea that an ordinary man should be capable of heroism seems plain wrong. Heroism is commendable but it is not something we can expect, and it is not a crime not to sacrifice your life for another. Furthermore, the emphasis on sanctity of life seems incorrect – requiring the defendant to give up their life to save someone else’s surely violates the defendant’s sanctity of life.
The main concern of policy makers in allowing the defence of duress for murder must be the perceived opportunity it gives to organised crime groups. We’ve seen it countless times on TV – the gang leader tells one of his minions to kill someone or he’ll kill him. Allowing the defence of duress for murder would seem to let the minion claim duress and no one would be convicted. However, this ignores the voluntary association rule laid out in Hasan (R v Hasan  2 AC 467) – the defence of duress is not available if the defendant has voluntarily consorted with the person issuing the threats, knowing that they resort to violence when committing offences or if the defendant has joined a terrorist organisation or organised crime group.
The Law Commission’s recommendation: http://www.lawcom.gov.uk/app/uploads/2016/07/LC.-083-CRIMINAL-LAW-REPORT-ON-DEFENCES-OF-GENERAL-APPLICATION.pdf
O’Reilly article – from 1972 so before many of the modern cases; however, it provides some good arguments on the topic: https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1972.tb01342.x