The Historical Development of Duress and the Unfounded Result of Denying Duress as a Defence to Murder

Abstract

Duress provides an excuse to most crimes but since Howe is excluded to murder. This means someone who kills due to a fear of death or serious injury is denied the defence and instead faces a conviction, and life imprisonment, for murder. This article focuses on the origins of duress to establish that duress was introduced to excuse treason and as such was used to excuse unlawful killing. In Howe, rather than following Dudley and Stephens, there were other binding and persuasive precedents the Lords could have followed to reach the decision that duress should be available to murder. Furthermore, some of the most influential opinions in denying the defence to murder, Hale and East, were voiced without reference to case authority. In conclusion, there is no historical doctrine for denying duress to murder and doing so today is historically unfounded.