skip to Main Content
R V Howe And Bannister

R v Howe & Bannister [1986] UKHL 4: Duress, Murder and the Need for Reform

Emily Watts

Emily Watts

Emily is going into her third year at the University of Reading studying law. She aims to go into the private client sector and her interests lie in Family, Criminal and Trusts Law.

R v Howe and Bannister established that duress is not a defence to murder. Whilst this rule has been upheld to the present day, it is clear that the prohibition of duress as a defence to murder is a clear lack of justice.

Link to judgment: [1986] UKHL 4


Howe (19) and Bannister (20) had met through the two other co-defendants Murray and Bailey. Over the course of two days the four men horrifically killed two teenagers in a remote area. They were all charged with murder.

Murray and Bailey were convicted and sentenced for murder at the Crown Court. Howe and Bannister on the other hand, appealed their conviction. The appeal was on the basis that the two were forced to commit the acts in fear that Murray, a man 15 years their senior, would inflict the same treatment upon them.

Question for the court

There were three questions put to the House of Lords to decide upon in the appeal. However, the question of most importance here was:

Is duress available as a defence to murder?

This question was recognised as requiring a reconsideration of the decisions in Lynch [1975] AC 653 and Abbott v The Queen [1977] AC 755 which focused on duress as a defence to murder as well.

Court of Appeal

The decision on the Court of Appeal was in the negative. Duress should not be a defence to murder.

House of Lords Decision in R v Howe & Bannister

The resounding decision was that duress shall not be a defence to murder. The reasoning behind this is clearly policy based.

The Lords decided that the previous cases could not be relied upon as authority. The case of Lynch, which permitted duress as a defence to murder, was held to be an ‘anomaly’ in the previous centuries of common law prohibiting the defence. Abbott, which supported the decision of the Lords, could not be relied upon because it was only a Privy Council case and therefore can only be persuasive rather than binding.

Lord Hailsham put forward that the purpose of the criminal law is to protect innocents and set the standard expected to be followed by ordinary people. He said:

In the present case, the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility.

He goes on to denounce the argument of the ‘concessions of human frailty’ which, by consequence, argues that people cannot be expected to be heroes by laying down their life for another. Also, they cannot be expected to deny themselves self-preservation. These arguments were put forward in Dudley and Stephens (1884) 14 QBD 273 and the South African case S v Goliath 1972 (3) S.A.I. Instead he upholds:

I have known in my own lifetime too many acts of heroism by ordinary human beings… to regard a law as ‘just or humane’ which withdraws the protection of the criminal law from the innocent victim and casts the cloak of its protection upon to coward…in the name of a ‘concession to human frailty

Lord Griffiths took the same approach:

The reasoning that underlies that decision [in Dudley and Stephens] is the same which denies duress as a defence to murder. It is based upon the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another’s life

It was also stated in obiter dicta that duress should not be available to attempted murder because a higher level of mens rea (intent to kill) is required.


There are two overarching issues that create the strong sense of injustice with the precedent set in R v Howe and Bannister.

Firstly, the ‘policy’ behind this decision is too harsh and imposes unrealistic expectations upon the defendant. The ‘concessions of human frailty’ argument highlights that people are not perfect and this should be recognised by offering a defence. This argument has already been recognised in other areas of criminal law, for example, the partial defence of Loss of Self-Control. The defence is viewed as a concession to human frailty because the person temporarily loses their self-control. If it can be extended to other areas of criminal law why can it not be extended to murder?

Lord Hailsham rejects duress as a defence for murder on the grounds that the defendant has made a conscious choice and, in his mind, chosen the “lesser of two evils”. This seems anomalous with the rule in Valderrama-Vega [1985] Crim LR 220 that the defendant should be held to the extraordinarily high standard of ‘hero’. The rule states that in order for duress to be present the defendant himself must be threatened with death or serious injury. The rule is significant when considering the predicament of the defendant. They are asked to act as a ‘hero’ whilst potentially facing death (assuming the threat will be carried out). There are very few people who, in that scenario, would choose to lay down their life, especially for someone they don’t know.

Lord Hailsham himself recognised that “many would succumb to temptation” before claiming that he had seen many heroic acts by ordinary people. Barrister Maggy Piggot emphasised in her article that, allowing a defence is not necessarily approving of a defendant’s conduct but it is reasonable to think it is inappropriate to impose a punishment for failing to be a hero. Furthermore, how many people when faced with the ultimatum between someone else’s life and the lives of their families would choose someone else’s? Likely even fewer.

Arguing for a partial defence to murder

What the court is asking for is not reasonable therefore; the defence should no longer be absolutely prohibited but become at least a partial defence to murder. The Law Commission in fact went further in their paper ‘Murder, Manslaughter and Infanticide’ stating that duress should be a full defence to murder, manslaughter and attempted murder. There is a strong sense of injustice here because defendants will more than often than not be unable to meet the expectations of the court. The paradox is that if they do meet their expectations they will have to pay with serious injury or death.

It is unlikely with the harsh policy reasoning behind the rule that Parliament will allow duress as a full defence to murder. However, a partial defence could become the middle ground between policy and justice for the defendant. Permitting duress as a partial defence would mean that if duress could be proven the charge of murder would be reduced to manslaughter. Murder carries a compulsory life sentence, no matter the circumstances. It is unjustified, taking into account the previously mentioned ‘concessions of human frailty’, that someone who was forced to kill another should be punished for life. The sentence should reflect the action and, in cases of duress, this is not the case. A manslaughter charge brings more flexibility in terms of sentencing, which would act as a representation of the defendant’s part in the crime.

Anomalies in the law

Secondly, the interplay with the ‘serious harm’ rule creates injustice for defendants. The rule generally means that those who inflict grievous bodily harm (GBH) with intent and cause the death of the victim will be liable for murder. Evidently, duress is not a defence to murder but it is available as a defence to GBH. This means that someone could be forced to inflict GBH with intent but whether the defence is available to them depends on whether the victim dies. If they do, the defence is not available and the injustice is that it could depend on whether, for example, the ambulance makes it to the scene on time. There are variables that are completely out of the defendant’s control which further reinforces the need for reform. If there was a partial defence available then the circumstances of the defendant can be considered along with the tragic loss of an innocent life.


The policy decision is to protect innocent lives but there needs to be consideration of the position of the defendant who is unlikely to be there by choice. There is a clear difference between murder as a result of duress and murder because the defendant felt a desire to kill. This rule is still in force today and needs to be changed to reflect the positions of each party involved in the crime.

Back To Top