The Paradox of Disallowing Duress as a Defence to Murder

Abstract

The common law has long recognised that what would otherwise constitute murder should be reduced to the lesser offence of voluntary manslaughter in instances where the accused was induced to kill because of provocative conduct on the part of the deceased that does not amount to lawful excuse or justification such as self-defence or defence of others. In what is often termed as a reasonable concession to human frailty, the law has opted to treat those who kill under such circumstances as less morally blameworthy than those who kill in the absence of such provocation or other mitigating circumstances such as a genuinely held, albeit objectively unreasonable belief, that the use of deadly force was necessary in self-defence or the defence of another person. In sharp contrast, the common law has steadfastly declined to allow the defence of duress to be interposed in like manner as a partial defence to the crime of murder. The discussion to follow will examine whether this disparate treatment is justifiable in light of the stated underpinnings of these defences. The discussion will conclude by exploring various proposals for reform and the extent to which they are likely to result in sanctions that are commensurate with the relative degrees of moral culpability of those who seek to interpose these defences as complete or partial defences to the crime of murder.