Journal of Applied Philosophy, Vol. I , No. 1, 1984 133

Duress and Responsibility for Action

ROBERT CAMPBELL

ABSTRACT Not all crimes require mens rea, but all serious ones do. Crudely the requirement is that the defendant be able to take responsibility for the actus reus of which he is accused. Whar must be implied by this is essentially that the agent retain control of his actions. I t is unjust to punish actions which are outside of the agent’s control since such punishment cannot deter and is, arguably, pointless.

Duress does not remove an agent’s control of his actions. This does not mean that actions performed under duress should be viewed as fully intentional. For though the agent foresees and wishes for the result of his action performed under duress, it is wished for as the best option out of a range of alternatives manipulated by the one who makes the threats which constitute the duress. The agent is responsible for his choice, but not for what is available for him to choose. He has an obligation to do what is best in the circumstances and should not be blamed i f that WOUM, in other circumstances, be accounted criminal.

Principal cases cited:

D.P.P. for N.I. z, Lynch 119751 AC 653; 119751 1 All ER 913. Abbott v The Queen [ 19771 AC 755; [ 19761 3 A1 1 ER 140. Hyam v D.P.P. [1975] AC 55; [1974] 2 All ER 41.

In the common law mens rea is an essential part of the concept of a crime: actus non facit reum nisi mens sit tea’. T o some people this can seem puzzling and rather peculiar. It seems to make the determination of guilt a very subjective and, perhaps, ultimately impossible project. All we want to do, or can do, is to establish whether the accused did the action of which they are accused. Their state of mind at the time is only relevant, if relevant at all, in deciding what the appropriate punishment is. The existence of what are technically known as crimes of ‘strict liability’ would seem to bear this out, in part. Such crimes can be committed inadvertently or by mistake but not, interestingly, involuntarily, it would seem [ 11. Automatism or physical force, the argument might go, makes you an instrument of the action of another or of an Act of God. Thus, even here, it is the fact that, strictly, you did not act in the proscribed way that counts, not your state of mind at the time.

The majority of criminal offences, however, require that some kind of mens rea be established. The failure to establish it, or the failure to rebut the suggestion that it is lacking, is a complete defence to a charge.

It has been suggested (21 that this state of affairs is inconsistent and that all crimes should be crimes of strict liability. The motive for this suggestion can be either that the notion of qualified liability implies that some people cannot help what they do and that, with the exception of children and, perhaps, lunatics, this is tantamount to making excuses for the criminal, being ‘soft’ on crime. The second

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motive can be quite opposed to this, namely that the state of mind of the criminal at the time of the act is a matter for treatment, not punishment, and so is the concern of psychiatry, not law, the only thing the law need occupy itself with is the factual question of who did what and, possibly, to whom.

It is important to what follows that both these views, whatever their merit elsewhere, be seen as quite misplaced on the notion of responsibility. The legal maxim (‘the act does not make one guilty unless the mind is guilty too’) is neither a psychological generalisation nor a piece of pious moralising. It is a clarification of what is meant by guilt and follows logically from the notions of ‘act’ and ‘responsi- bility’. If I press the trigger of a gun which goes off and kills someone, then I may be guilty of murder. On the other hand one of the following may be true:

(a) I stumbled and fell on the gun, catching my finger on the trigger as I fell. (b) I fired the gun deliberately, but at a target in a firing range properly

supervised. The victim was pushed into the path of the bullet by a third party.

(c) I pointed what I believed to be a toy pistol at my friend and pulled the trigger.

(d) Whilst fast asleep I pick up a gun, announce that I am Kojak, and shoot the lodger.

None of these cases, as described, would count as murder in law. Nor would a layman be inclined to attach very much in the way of moral censure to any of these actions. (c) might possibly amount to manslaughter if it could be shown that my mistake arose from gross negligence [ 31 . All four accounts constitute complete defences to a charge of murder, even though the defendant fired the gun which killed the victim, and, in one case, did so deliberately.

What is missing in each case is ‘malice aforethought’: the intention to kill or to do grievous bodily harm [4] . In two of the above cases what was intended, or indeed could, probably, have been reasonably foreseen, was quite different from what actually happened, and in the other two nothing was intended at all. The question of intent, though in a sense a subjective one, is not of subjective interest alone. It is not because we are interested in understanding psychological motivation or in assessing moral worth that we must establish the nature of the intent. What is at issue here is the question of control.

In all four cases the consequences of my actions left my control and so could not have been predicted by me, or by anyone else in my position. Because of this there is no way in which I could have avoided these consequences. There are strong arguments, which I will not rehearse here, for saying that it is both pointless and unjust (because pointless) to punish someone for doing that which they could not have avoided doing or could not reasonably have been expected to have taken precautions against. Whether they are punished or not they, or anyone else in a similar position, will not be able to avoid doing it again.

The injustice of pointless punishment, according to this argument, lies in the infliction of harm to no possible purpose. This is why we do not inflict legally enforced penal sanctions on children, lunatics or those who, despite the exercise of reasonable care, make mistakes or cause accidents. It is not unreasonable, however, to punish someone who, although they did not intend to produce certain conse- quences by their actions, did in fact do so because they failed to exercise a general level of reasonable care, or a special level of care required by their job or position. It is not unreasonable because the existence of sanctions against carelessness or

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negligence will Prompt most people to greater thoughtfulness [ 5 ] . On this view of the justification and purpose of punishment the role of the concept of mens rea in crimes other than those of strict liability becomes clear; it attempts to characterise these kinds of action over which the agent has control and for which the agent therefore, has moral and legal responsibility.

In the four cases mentioned above (p. 134) one or both of two things are missing: knowledge of what one was doing and voluntariness. In (a) and (b) the act was entirely involuntary, unwilled and unwanted. There are, however, actions which, though willed, are not wanted. How far can actions in this category be counted as fully voluntary, and hence the responsibility of the agent?

Suppose whilst walking on the sea-shore I notice someone cut off by the incoming tide on a rock out at sea. He is clearly in danger of being washed off and drowned. I also notice a second rock with a second person in the same situation. Fortunately, there is a rowing boat nearby and I calculate that I can just reach one of the rocks before the rising tide covers it. I also calculate that I cannot reach both rocks before one of the castaways has perished because the rocks are as far away from each other as they are each (equally) as far away from me [ 6 ] .

It clearly matters, morally, whether I choose to act or not. Assuming that I can act without undue risk to myself then I have a moral duty to save one of these two lives. There may also be, in otherwise similar situations, a legal duty to act, e.g. a surgeon with only time to operate on one of two of his dangerously ill patients. The law recognises that omissions can be as culpable as commissions where there is a recognised duty to act, in virtue of a contractual or other special relationship 171. I cannot however be under an obligation, moral or legal, to save both lives since it is physically impossible for me, in the circumstances, to do so. What does not matter, so far as my duty goes, is which life I choose to save. But, though it may not matter morally which life is saved and though I can have no duty to save both, nonetheless I must choose and by my choice, knowing and willing such a consequence, make it inevitable that some particular one of the threatened pair dies. Certainly, someone will die whatever I do, but equally whatever I do, the one who does die could have been saved. It would be strange to say that I intended that death since I did not want that to happen even though I was willing for it to happen.

Let us examine a similar, though rather more complicated example: “. . . the driver of a runaway tram. . . can only steer from one narrow track on to another; five men are working on one track and one man on the other; anyone on the track he enters is bound to be killed” [8] . Whatever choice is made the outcome is the death of innocent parties and at the moment of choice the driver knew what he was doing and foresaw those deaths. They were willed but, let us presume, not wanted. Is he responsible for them?

A distinction has been made between two kinds of intention; that involved in foreseeing, and wishing for, something as a consequence of one’s actions, and that involved in foreseeing, but not wishing for, something as a consequence of one’s actions. The former was called by Bentham [9] ‘direct intention’ and the latter ‘oblique intention’. The sense in which one can be said to have intended the death of the abandoned castaway or the tram crash victims must be ‘oblique’ rather than ‘direct’. They are things I foresee as a consequence of my actions, but bringing them about is not part of my motive in acting.

This is, in fact, a rather peculiar sense of ‘intention’. It would not come naturally to most people to describe either of the above sets of consequences as ‘intended’ just

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because they were not wished for. The law, however, seems to regard both kinds of intent as equally blameworthy:

If a person chose, for some wicked purpose of his own (e.g. to recover the insurance on a ship), to sink a boat at sea, and thereby caused the deaths of the occupants, it matters nothing whether, at the time of committing the act, he hoped that the people would be picked up by a passing vessel. He is as guilty of murder, if the people are drowned, as if he had flung every person into the water with his own hands. [ 101

In a whole range of cases [ 111 the law has recognised oblique intention as liability for murder. There is, however, a difference between the example given by Stephen and the ones I have chosen. In Stephen’s case, any deaths were entirely avoidable since the action that led to them need not have been done. In my examples, though these particular deaths need not have happened, the situation was such that somebody would have died whatever was done. It seems to me to be just this difference that explains our intuitive feelings that Stephen’s example is of a criminal act whereas cases of the kind that I have described are not.

In other words there can be no defence to a charge of murder on the grounds that the death was not intended if death or really serious injury was foreseen as the highly probable consequence of an action performed deliberately and without lawful excuse and death, really serious injury, or exposure to a serious risk of grievous bodily harm was the intended consequence of that action [12]. This rather complicated amplification of the mens rea for murder is clearly necessary if the crime is to include not merely malicious killing but also causing death by acts intended not to kill but to seriously harm or to expose the victim to the risk of serious harm; actions which, in most cases, would be counted as murderous by almost anyone. What, however, can be said of actions which cause a death which was foreseen (or foreseen as probable) when that death was not merely not wanted, but brought about under threat? Would such an action count as one performed ‘deliberately and without lawful excuse’? In Hyam Lord Hailsham makes it clear that he considers that foreseeing the probable consequences of one’s actions is not the same as intending them (2 A l l ER 53). I have already hinted (p. 135) that I believe this is right. Is, then, an action performed under duress fully intentional?

If we consider an example given by Williams we can see what could be such a case:

Jim finds himself in the central square of a small South American town. Tied up against the wall are a row of twenty Indians, most terrified, a few defiant, in front of them several armed men in uniform. The Captain in charge.. . explains that the Indians are a random group of inhabitants who, after recent protests against the government, are just about to be killed to remind other possible protesters of the advantages of not protesting. However, since Jim is an honoured visitor.. . the Captain is happy to offer him a guest’s privilege of killing one of the Indians himself. If Jim accepts, then as a special mark of the occasion, the other Indians will be let off. Of course, if Jim refuses, then there is no special occasion and Pedro here will do what he was about to do when Jim arrived, and kill them all. [13]

I am less concerned here with what Jim should do than with the nature of the position in which he finds himself. The whole point of the example for Williams is his claim that, utilitarians notwithstanding, there is no single, obviously right, course of action for Jim to choose. There is as little, or as much, to be said for either of the

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two major alternatives open to him. Whether he accepts the Officer’s offer or not, someone will die. Though his refusal will mean that noone will die at Jim’s hands (for he is not forcing, or even urging the Officer to shoot anyone), the threatened twenty deaths is clearly a form of coercion, a kind of moral blackmail on him to accept an offer which even the hostages want him to take. It is exactly parallel to the kind of blackmail exerted by hijackers who assert that the authorities with whom they are bargaining must decide, by their actions, the fate of the hostages. However strictly false this might be, and however unwise it might be in the long term to save the hostages by acquiescing in the hijackers’ demands, society as a whole does vest some responsibility for the safety of the hostages in the authorities who, however unwillingly, must deal with the situation. Similarly, Jim, however unwillingly, and however indirect and mediated the causal connection, must bear some responsibility for the deaths of the twenty hostages if he declines the Officer’s offer.

Accepting, on the other hand, the offer and killing a single victim has, although the effect is more causally direct and certain, the advantage that nineteen saved lives may be set against that death. English law would, however, find Jim more culpably responsible for that death than for the twenty killed by firing squad if the offer were declined. If he pulled the trigger himself English law might well find him guilty of murder, since he would have knowingly killed someone without lawful excuse. The moral blackmail exercised on him in the form of the other threatened nineteen lives would not, it would seem, count as lawful excuse because his own life was not under threat (and probably not even if it had been, as we shall see). Duress is currently available as a defence to a charge of murder in English law but only if it consists of realistic threats to the life of the defendant and/or his close family, and only if the defendant is an accessory and not a principal in the first degree [ 141 .

The law is in fact, in a somewhat confused state on this point. Until 1975 case law was very sketchy and the general opinion was that duress per minas (i.e. by threats of physical violence) could be a defence in cases of lesser seriousness than murder, or treason [ 151. It is arguable that necessity (a ‘defence’ not easily distinguished from duress, but apparently covering force of circumstances rather than threats of physical violence) is a defence in cases such as self-defence and the prevention of crime (although it is more usual to explain it as a ‘justification’ rather than a ‘defence’: such offences are often dealt with by statutory instruments). It is not taken to be a defence where the accused purchases his life at the cost of innocent parties (161.

The general principle operating here, though the evidence is so thin as to make this rather speculative, is that it may be permissible to commit a lesser crime in order to avoid or prevent the commission of a greater one. Presumably, for this to carry very much force, one must (a) believe that the greater crime will certainly, or very probably, otherwise occur, and (b) believe that the commission of the lesser crime will certainly, or very probably, prevent it. Though this is perhaps the rationale for the ‘defence’ (or justification) of necessity, it can also be seen as an explanation of duress. No-one would blame someone for stealing under a realistic threat of death to himself or his near relatives. Few would excuse someone for committing murder because he thought that if he did not he would be beaten up, or deprived of his property. This also makes it clear why the defence, no matter what the threatened harm, cannot extend to murder, since nothing can be threatened which is morally worse than the murder committed to avoid it (or so it might be said).

The state of the law was changed by a decision of the House of Lords in 1975. The Law Reports describe the circumstances of the case as follows:

138 R. Campbell

The defendant drove a motor car containing a group of the I.R.A. in Northern Ireland, on an expedition in which they shot and killed a police officer. On his trial for aiding and abetting the murder, there was evidence that he was not a member of the I.R.A. and that he acted unwillingly under the orders of the leader in the group, being convinced that, if he disobeyed, he would himself be shot. The trial judge held that a defence of duress was not available to him and the jury found him guilty. The Court of Criminal Appeal in Northern Ireland upheld the conviction. [ 17)

The House of Lords, by a majority, held in 1975 that this was a misdirection in law and ordered a new trial. Lynch was tried again, evidence of duress was admitted as setting up a relevant defence, and he was again convicted. Lord Kilbrandon, one of the Law Lords involved, adds that Lynch believed that both himself and his family were under threat, and that the object of the expedition was not made clear to Lynch until the journey was under way [ 181.

However in 1977 the Judicial Committee of the Privy Council held that duress was no defence to a charge of murder as a principal in the first degree [ 191 . The only way of avoiding the contradictory appearance of these two decisions is to emphasise the distinction between principals in the first and second degrees, that is, in Kilbrandon’s phrase, between “. . . the man who strikes the blow and. . . the man who helps him make the blow effective” [20]. The distinction does, on the face of it, appear to be vacuous.

Clearly the jury who reconvicted Lynch felt that the plea of duress was not, in this case, established. What is interesting is that nearly everybody to whom I have presented the facts of the case as set out above has indicated that, in their opinion, Lynch was not entirely blameworthy. They either suggested that he should have been acquitted (they would have acquitted him), or affirmed that, placed as Lynch claims he was, they would have felt it right to do as he did. (Though, again interestingly, for many this opinion was dependent on the fact that Lynch’s family was at risk, for which I can only find Kilbrandon’s testimony.) This would seem to have been the opinion of one of the appeal judges in Lynch who remarked: “A law which requires innocent victims of terrorist threats to be tried for murder and convicted as murderers is an unjust law” [21]. Against this Kenny has argued that ‘innocence’ of the victim of threats who subsequently kills must not be allowed to weigh more heavily than the innocence of those he kills. “It is true that to resist duress, or to refrain from taking life under necessity may call for heroism. It does not follow that it is morally permissible to do anything else” [22].

But nor does it follow that it is morally impermissible. Not weighing the innocence of the threatened more heavily than the innocence of the subsequent victim should suggest not weighing it less heavily either. It might have been heroic of Lynch to have stood up to the gunmen and refused to co-operate, but the consequence could well have been, if we assume that the gunmen’s threats would be carried out (and why may we not?), the deaths of Lynch, possibly of his family and also, in all probability that of the policeman as well. This is certainly a case where the distinction between principal in the first degree and accessory is not vacuous. One who commits the crime is, tautologically, necessary for the crime to be committed. One who merely aids and abets is probably dispensable. If Lynch was dispensable, and the evidence strongly suggests that he was, and if the gunmen’s objective was to kill the policeman (as opposed to, let us imagine, getting Lynch

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convicted of murder) then Lynch’s refusal to co-operate would not necessarily have saved the policeman’s life. At best the heroic sacrifice of Lynch and, perhaps, his family would have inconvenienced the murderers. At worst it substantially increases the number of lives lost. It is clearly quite possible that Lynch neither wanted nor was indifferent to the policeman’s death. What we have therefore to ask is whether, if he saw it as a highly probable consequence of actions which he could have avoided, he intended it in the sense required by the law for a conviction of murder?

We have already examined two cases (the rowing boat and the tram) where it seemed impossible to argue that the foreseen but unwanted consequences of actions are intended. Those legal cases where foreseen but unwanted consequences have been treated as intentional are all cases where the action itself was both criminal and avoidable. The person who rows out to save someone stranded on a rock, or who switches the points in front of a runaway tram does not do anything criminal. Furthermore, whatever he does, someone will die. This is not true of any of the legal cases except Lynch. (It is not true, for example, of Abbott, whose actions were a direct cause of Gail Benson’s death.)

Kenny’s view, that it is not unreasonable of the law to expect heroism of those so placed that their only alternative is iniquity, is not wrong but irrelevant to Lynch. Lynch’s alternative courses of actions were both iniquitous (if we accept, on Kilbrandon’s testimony, that heroics on his part would have risked his family). Self- sacrifice for the benefit of innocent third parties is certainly heroic but it is not required by justice and so, arguably, should not be enjoined by law. Moreover, Lynch’s family were also innocent third parties whom, assuming they were genu- inely at risk, Kenny would sacrifice on the altar of principle without even the certain benefit of saving the policeman’s life.

.In Lynch’s case, had, as it was not, the defence of duress been established, the consequences of connivance could have been seen to have been rather less dreadful than those of refusing to bow to duress. (This is, of course, true only of Lynch’s case, and those like it, not of duress in general.) In this, at least, Lynch has much in common with Williams’ Jim (see above). This is not an argument for a utilitarian calculus but for not treating as fully intentional an artificial choice between alternatives rigged by an undeniably culpable third party. For Lynch, as for all the agents in the cases I have considered, death was not a consequence of a chosen but avoidable action, but the consequence of any action he chose. His action determined only how many and who should die. He surely could not be blamed for choosing, if he did, to save the most, particularly if that most included his own family. Death itself was, in a very real sense, beyond his control and therefore something which he could not, plausibly, be said to have intended in the strict sense, nor for which he should take responsibility.

Correspondence: Robert Campbell, Department of Humanities, Bolton Institute of Higher Education, Chadwick Street, Bolton, Lancashire BL2 1 JW, England.

NOTES AND REFERENCES

[l]See Hill v Baxter (1958) 1 QB 277, (1958) 1 A l l ER 193. [2]See the evidence given to the Butler Committee by the National Association for Mental Health.

Cited by KENNY, A. (1978) Freewill and Responsibility, pp, 3-4 (London, Routledge & Kegan Paul). [3]See e.g. Bateman (1925) 94 LJKB 791 and Lamb (1967) 2 QB 981, (1967) 2 A l l ER 1282.

140 R. Campbell

[4]See Vickers (1957) 2 QB 664, (1957) 2 Al l ER 741 and Hyam v D.P.P. (1975) AC 55, (1974) 2 Al l ER 41.

151 See HART, H.L.A. (1968) Negligence and mens rea, in: Punishment and Responsibility (Oxford . . University Press).

(61 See GLOVER, J. (1977) Cawing Death and Saving Lives, pp. 208-229 (Hamondsworth, Penguin) and HARRIS, J. (1980) Violence and Responsibility, pp. 71-72 (London, Routledge & Kegan Paul), whose discussions of a slightly different example suggested this line of approach to me.

[7]See Pitrwood (1902) 19 TLR 37; Gibbons and Proctor (1918) 13 Cr. App. Rep. 134; Bonnyman (1942) 28 Cr. App. Rep. 131, Nicholls (1874) 13 Cox CC 75; Stone and Dobinson (1977) QB 354, (1977) 2 A l l ER 341.

l8lThe example is Philippa Foot’s, taken from Virtues and Vices, p. 23 (Cambridge, University Press, . .

1978). 191 BENTHAM, J. (1960) Principles of Morals and Legislation, p. 202 (ed. Harrison) (Oxford University

Press). [ 101 R . v Serne and Goldfinch (1887), 16 Cox CC, cited in Cross and Jones, An Introduction to Criminal

Law (9th edn), para. 8.11 (London, Butterworths, 1980). [llIDesrnond, Barrett and others, in Stephens, art. 264 (see Cross and Jones, 8.11); R. V. Cunningham

(1957) 2 Al l ER 412; R . V. Vickers (1957) 2 Al l ER 741; D.P.P. v Smith (1960) 3 All ER 161; Hyam v D.P.P. (1974) 2 All ER 41.

(121 See Hyam v D.P.P. (1974) 2 All ER56 (per Lord Hailsham). (131 SMART, J.J.C. & WILLIAMS, BERNARD (1973) Utilitarianism: For and Against, p. 98 (Cambridge

[14]See D.P.P. for N.I. v Lynch (1975) A.C. 654, (1975) 1 Al l ER 913. [15]CROSS & JONES, op. cit., paras. 18.1-18.9. [16]See CROSS & JONES, op. cit., paras. 18.10-18.17. See also R v Dudley and Stephens (1884) 14 QBD

273; Buckoke v GLC (1970) 2 Al l ER 193, (1971) 2 A l l ER 254; and Bourne (1939) 1KB 687, (1938) 3 A l l ER 615.

University Press).

[17]D.P.P. for N.I. v Lynch (1975) AC 653 at 653. [ ~ ~ ~ K I L B R A N D O N , LORD (1983) ‘Duress per minos as a Defence to Crime’, in: STEWART, M.A. (Ed.)

(1983) Law, Morality and Rights (Netherlands, D. Reidel Pub. Co.). The Al l ER report (1975) 1 A l l ER 913 confirms the second point, but not the first.

[ 191 Abbott v the Queen (1977) AC 755, (1976) 3 A l l ER 140. 1201 KILBRANDON, op. cit. [21]D.P.P. for N.Z. v Lynch (1975) 1 A l l ER at 930 (per Lord Wilberforce). [ ~ ~ ~ K E N N Y , A. (1983) ‘Duress per minus as a Defence to Crime’, in: STEWART, M.A. (Ed.) (1983) Law,

Morality and Rights (Netherlands, D. Reidel Pub. Co.).