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r v howe done

r v howe done

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Published by: farahayn on Apr 30, 2009
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05/18/2010

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Case briefing general principal of law 2.Duress is the defence that applies where a person commits a crime because theywere acting under a threat of death or serious personal injury to themselves oranother.R V. HOWE The defendant had fallen under evil influence of a man called Murray.
In theappeal, the appellants with an intended victim were driven by Murray to an isolated areawhere the appellants and Murray assaulted the victim and then Murray killed him. On asecond similar occasion the appellants jointly strangled a victim. On a third occasion, theintended victim escaped. The appellant were tried on indictment on two counts of murder and one of conspiracy to murder.
 The appellant, Howe was present as aidersand abettors at the killing.
Their defence was that they feared for their own lives if they did not do as Murray directed. Murray is the secondary parties in this case. H
eadmitted to being parties to the killing and the conspiracy to kill in thecircumstances, they alleged that they are feared that Murray will treat them inthe same way as if he did not comply Murray instruction.1. MURDER OF ELGARHe was the first victim, 17 years old. He was offered a job driver by Murray.Murray asks the five men to kill Elgar because he said that Murray was a grass.Howe strangling Elgar with shoelace and he admitted to being parties to thekilling and the conspiracy to kill in the circumstances, they alleged that they arefeared that Murray will treat them in the same way as Elgar if he did not complyMurray instruction.2. MURDER OF POLLITTSame course of the conduct took place as Elgar.3. CONSPIRACY TO MURDER REDFERNHe suspected that something was afoot and managed with some skill to escapeon his motorcycle.
 
ISSUE THAT ARISING FROM THE CASE1.
whether duress is available as a defence in law to a person charged with murder as aprincipal in the first degree (actual killer) ?Duress defence was not available in murder. The principle that duress should never be adefence to murder was laid down as far back as the sixteenth century. A person underduress should die him or herself rather than escape by means of murdering an innocentperson.
 
"If a man be menaced with death, unless he will commit an act of treason, murder, orrobbery, the fear of death does not excuse him if he commit the fact; for the law hathprovided a sufficient remedy against such fears by applying himself to the courts andofficers of justice for a writ or precept de securitate pacis. Again, if a man be desperatelyassaulted, and in peril of death, and cannot otherwise escape, unless to satisfy hisassailant's fury he will kill an innocent person then present, the fear and actual force willnot acquit him of the crime and punishment of murder, if he commit the fact; for heought rather to die himself, than kill an innocent: but if he cannot otherwise save hisown life, the law permits him in his own defence to kill the assailant;2. whether a sober person of reasonable firmness sharing the appellants' characteristicswould have responded to the threats by taking part in the killing.In duress the words or actions of one person break the will of another. The law requiresa defendant to have the self-control reasonably to be expected of the ordinary citizen inhis situation. It should likewise require him to have the steadfastness reasonably to beexpected of the ordinary citizen in his3. Whether the defence of duress can be applicable for principal offender.Principal offender is the one who commit the actual killing. The defence are notapplicable for the principal of offender. In this situation, Howe took part in the killing of elgar and politt and involved with conspiracy of redfern with banister burke and Clarksonwhich this we known as joint enterprise.COURT’S VERDICTGiving the judgment of the Court of Appeal Lord Lane C.J. , Russell and Leggatt that thedecision involved the following points of law of general public importance. In dismissingthe appeals the court certified three points of law of general public importance wereinvolved in the decisions to dismiss the appeals, namely:
1.
Is duress available as a defence to a person charged with murder as a principal in thefirst degree (the actual killer)?2. Can the one who incites or procures by duress another to kill or to be a party to akilling be convicted of murder if that other is acquitted by reason of duress?3. Does the defence of duress fail if the prosecution prove that a person of reasonablefirmness sharing the characteristics of the defendant would not have given way to thethreats as did the defendant?" Appeals dismissed
In howe the house of lords put foward four grounds for its decision that duressshould not be a defence for secondary parties to murder.1. An ordinary person of reasonable fortitude was expected to lay down their ownlife rather than take that of someone else.

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