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KembaraXtra-Case Law -Howe and Bannister (1987) - House of Lords
Key Legal Principle: This case is a seminal ruling concerning the defense of duress in criminal law, specifically highlighting the requirement of proportionality between the threat faced and the criminal act committed.
Facts of the Case:
This statement from Lord Hailsham is crucial for understanding the limitations of the duress defense. It signifies that:
When considering the defense of duress, always evaluate:
Key Legal Principle: This case is a seminal ruling concerning the defense of duress in criminal law, specifically highlighting the requirement of proportionality between the threat faced and the criminal act committed.
Facts of the Case:
- Defendants: Two individuals, Howe and Bannister.
- Offense: Participated in the torture, kicking, punching, and sexual abuse of a man.
- Ultimate Outcome: The victim was subsequently strangled to death by a third party.
- Defense Raised: Duress.
- Basis of Duress Claim: The defendants asserted they acted under orders and out of fear of a man named Murry, who was known to be violent and sadistic.
- "... some degree of proportionality between the threat and the offence must, at least to some extent, be a prerequisite of the defence..."
This statement from Lord Hailsham is crucial for understanding the limitations of the duress defense. It signifies that:
- Not All Threats Justify All Crimes: The existence of a threat (even a severe one, like fear of a violent individual) does not automatically excuse any and all criminal actions taken in response.
- Balancing Act: Courts will assess whether the defendant's criminal act was a reasonable and proportionate response to the threat they faced. The more serious the crime committed, the more compelling and immediate the threat must have been to potentially justify the defense.
- No Carte Blanche for Serious Offenses: This ruling strongly suggests that duress is unlikely to be a successful defense for crimes involving the deliberate infliction of serious harm or death, especially when the defendant actively participates in the violence rather than being a mere passive participant under extreme coercion. The nature of the acts committed by Howe and Bannister (torture, sexual abuse) were gravely disproportionate to merely obeying orders, even under fear.
- Objective Standard (Implied): While not explicitly stated as an objective test in this excerpt, the concept of "proportionality" inherently introduces an objective element. The court will likely consider what a reasonable person, faced with a similar threat, would have done.
When considering the defense of duress, always evaluate:
- The nature and severity of the threat.
- The nature and severity of the crime committed.
- Is there a reasonable and proportionate link between the two?
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