R v Bourne

Facts

The defendant compelled his wife, by threats, to commit an act of bestiality with a dog, and he was present while it took place. The wife acted under his threats and, had she been prosecuted, would have had a defence of duress.

History

The defendant was convicted of aiding, abetting, counselling and procuring the offence committed by his wife. The wife was not the subject of the charge before the court. He appealed to the Court of Criminal Appeal, which dismissed the appeal.

Issue

Whether a person can be convicted as a secondary party to an offence committed by a principal who has a defence of duress and so would not be convicted herself.

Held

Appeal dismissed and the conviction upheld. The offence had been committed by the wife and the defendant had procured it, and her availability of the defence of duress did not prevent the offence from having been committed.

Ratio

• The liability of a secondary party depends on the commission of the offence by the principal, not on the conviction of the principal; the fact that the principal has a defence of duress does not prevent the offence having been committed.
• A person who procures an offence by threats cannot rely on the excuse available to the person whom he has threatened, since the defence of duress is personal to the principal and does not negate the wrong.

Key reasoning

• The court treated the wife as a principal in the sense that the act had been done by her, and the defence of duress as a personal excuse operating in her favour only.
• The defendant was the person who had caused the act to occur through the very compulsion that supplied her excuse, and it would be anomalous for the person who used the threats to escape liability because of their effect on the victim.
• The requirement for aiding and abetting was an offence committed with the assistance or procurement of the secondary party, and that was shown regardless of the excuse.

Where it fits in the module

In the Complicity topic the case is used to test the doctrine of derivative liability, which suggests that the secondary party is liable only if the principal commits an offence, against the argument that the law should look at the culpability of each party separately. It is read with the cases on acquittal of the principal and innocent agency.

Criticisms

• If liability is derivative, the better analysis is that a principal who acts under duress has committed no offence, and the conviction has to be explained by treating her as an innocent agent, which the court did not do.
• The decision draws the line between excuses, which are personal, and justifications, which are not, without a clear explanation of why duress should be treated as personal.
• The reasoning rests on the unusual facts of a defendant who himself used the threats, and may not be a good guide to cases in which the secondary party is less culpable than the principal.