Essay LA2-4 - In source four (Special
Study Materials) Lord Jauncey, in R v Gotts [1992], states: "I can see ... no justification in logic, morality or
law in affording to an attempted murderer the defence which is withheld from a
murderer."
Discuss, in
light of the relevant
case-law, whether you agree with this statement.
Written by Edward Ackers (February 2008).
This essay will provide detailed discussion over the defence of duress potentially being available to an attempted murderer, in light of the case of R v Gotts (1992) and other relevant case-law. The discussion will be of an opinionated nature, however one will establish a balance illustrating how others may view the topic. I will begin by outlining the development of the limitations of duress, then present discussion in light of the reasons given in Howe (1987) from withholding the defence from murderers and discuss the reasons in light of attempted murder and Lord JaunceyÕs statement. I will finally conclude by giving oneÕs opinion in light of the statement.
Dudley and Stephens (1884) primarily deals with the defence of necessity, however it still sets precedent in the area of law that is duress. The two defendants, another man and a 17-year-old cabin boy had been lost out at sea in an open boat about 1600 miles from land. They had been without food for eight days and without water for six. As a result, they decided to kill and eat the cabin boy, who had become weak and vulnerable. They were then rescued and the two defendants were arrested and charged with murder. The defence of necessity was held not to be available for murder.
In the case of DPP for Northern Ireland v Lynch (1975), a defendant was ordered to drive a group of terrorists to the scene of the crime where they then murdered a policeman. The defendant took no part in this, but later drove the men away. He claimed that he would have been shot if he refused to help but despite this, was convicted of murder. After appeals the case reached the House of Lords where it was decided that the defence of duress was available for a secondary offender.
The case of Abbott (1977) involved a defendant who had taken part in the murder of a woman. The woman in question had been stabbed by a cutlass and then buried alive. The defendant claimed that he was forced to help because of threats made against him and his mother. The Privy Council upheld the conviction and persuasive precedent was created in that duress was not available for secondary offenders.
The case of Howe and Bannister (1987) consisted of defendants who were involved in murders of two young men, who were alleged to have ÔgrassedÕ on other members from the gang. The defendants had kicked and punched the first victim until he was near death but had not been involved in the final act of strangulation. In the second case however, they had been the actual killers. They were convicted of murder. The House of Lords rejected the defence of duress unanimously. This case simply overruled Lynch and confirmed the persuasive precedent set by the Privy Council in Abbott.
Gotts (1992) involved a boy of 16, who alleged that he had been ordered by his father to kill his mother otherwise he, instead, would be shot. He therefore stabbed his mother and seriously injured her but fortunately, she survived. In the trial the defence of duress was not allowed so the boy pleaded guilty and was put on probation for three years. The House of Lords on appeal rejected the defence of duress on a majority verdict.
"I can see ... no justification in logic, morality
or law in affording to an attempted murderer the defence which is withheld from
a murderer." The statement simply
means that Lord Jauncey believes that as the defence of duress is not available
to murder, then it should definitely not be regarded as available to an
attempted murder. The case of Woollin (1998) set binding precedent upon
all courts in light of the jury finding intention for murder. It was held that
Ôthe jury should be directed that they are not entitled to find the
necessary intention unless they feel sure that death or serious bodily harm was
a virtual certainty (barring some unforeseen intervention) as a result of the
defendantÕs actions and that the defendant appreciated that such was the case.Õ
From this binding direction it can be clearly seen that for an individual to be
convicted of murder he only need have intended serious bodily harm. However, to
be convicted of an attempted murder an individual must have gone beyond Ômere
preparation and embarked on the crime proper (Gullefer (1987)).
Therefore, for an attempted murder the individual must intend to actually
murder the victim, however for the actual result crime they might only intend
serious bodily harm.
One will now discuss the
reasons for the decision to withhold the defence of duress from murderers.
The House of LordÕs
ratio decidendi for withholding the defence of duress from murderers
The proposition that
duress/necessity are no defence to murder, which originated from the case of Dudley
and Stephens was confirmed persuasively in Abbott and then confirmed
creating binding precedent in the later case of Howe.
The case of Howe
is the most recent case upon which the House of Lords have discussed the issue
of duress being available for the crime of murder.
The first reason that the House
of Lords stated was that an Ôordinary person of reasonable fortitude, if asked
to take an innocent life, might be expected to sacrifice their own life
insteadÕ. However, I believe that the House of Lords are asking too much of an
ordinary human being. Who gives the House of Lords the power to demand heroism?
The House of Lords seeks to protect the innocent victims in society, but surely
the person threatened is an innocent victim and it be could be argued that
their reason is slightly contradictory. In relation to attempted murder and
Lord JaunceyÕs statement, this reason can be directly applied to attempted
murder. In fact it could be argued that attempted murder shows the defendant is
even more of a coward due to the intention being stronger for attempted murder.
The second reason was created by
Lord Hailsham with the view that one who takes the life of an innocent cannot
claim it is the lesser of two evils. Although, many would argue that this
reason is narrow-minded and does not consider sufficient examples to be able to
justify it. An illustration can prove how the reason can seem na•ve; if the
defendant was asked to kill a member of the entrance staff at a theme park or a
bomb will explode inside the centre of the park, surely it is lesser of the two
evils. Although I may not agree with this reason due to its vague nature, I
believe it is a valid reason why duress should not be available to attempted
murder. In relation to the illustration just given, if the defendant intended
to simply kill the innocent bystander it could be considered worse than if the
defendant intended to cause grievous bodily harm in order to fake and show the
person making the threat that they are going to kill the victim. I believe that
this reason is valid although it is not the most convincing argument in terms
of attempted murder.
The third reason was that as
Parliament had not reacted to the Law CommissionÕs proposal in 1977 that duress
should be a defence to murder, it shows that Parliament are content with the
law how it is and therefore the judges felt that they should not undermine
Parliament. Although, others might argue that Parliament could have been
satisfied with the progress and state of the law as a result of LynchÕs
ruling in that duress is available to secondary offenders. However, this was
soon overruled by Howe. In relation to Lord JaunceyÕs statement that
there is no logic in giving attempted murderers a defence of duress, this reason
convinces me significantly and I believe that Parliament is content with the
law as Parliament often does take the advice of the Law Commission and act upon
their proposals. Therefore, Lord Jauncey is complying effectively with the
views of Parliament.
The fourth reason consisted of the reason that hard cases can simply be
dealt with in an administrative way, by not prosecuting, or by action of the
Parole Board or exercise of the Royal Prerogative of Mercy in ordering the
defendantÕs early release. On the other hand, it could be seen as disgraceful
in that a morally innocent person would still be branded as a ÔmurdererÕ. Lord
Wilberforce stated, quite rightly, in the case of Lynch that Ôa law
which required innocent victims of terrorist threats to be tried and convicted
as murderers, is an unjust law.Õ In relation to the discussion of whether Lord
JaunceyÕs statement is correct, this reason can be effectively used in terms of
attempted murder. The defence of duress should not be given to those who attempt
to kill as the circumstances can be considered and can be dealt with in an
administrative way.
The fifth reason was that the
House of Lords did not want to overrule the decision made in Dudley and
Stephens, which Lord GriffithÕs thought was based on Ôthe 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 anotherÕs lifeÕ. If Dudley
and Stephens was overruled, it would add to the uncertainty in the law in
this are which is clearly apparent and would officially make it Ôbad lawÕ.
Although, many would argue that Dudley and StephensÕ ratio is not
absolutely clear. Many believe the unclear ratio simply means that duress is
not a defence to murder universally, although others argue that it actually is
perceived incorrectly and that duress is only not available due to the
circumstances of the case. In relation to Lord JaunceyÕs statement, this reason
stands even stronger against the idea of allowing it to a crime that requires
more evil intent than of the crime of murder. Therefore, this point convinces
me to once more agree with the standpoint chosen by Lord Jauncey.
The sixth reason made was that
Lord Griffiths thought that the defence should not be available because it was
Ôso easy to raise and may be difficult for the prosecution to disproveÕ. By the
House of Lords setting binding precedent it would Ôopen the floodgatesÕ and
allow nearly all murderers to raise the defence and many may achieve success,
this would clearly not be beneficial to the English Legal System. However, many
would argue that Lord GriffithsÕ comment is not specific and that in fact most
defences are easy to raise which complements the practice Ôinnocent until
proven guiltyÕ (Woolmington v DPP (1935)). In addition, Lord Griffiths
overlooks the fact that in Howe and Lynch the jury had rejected
the defence and convicted, which shows that it is not impossible for the
prosecution to achieve their aim. Lord Hailsham even commented that Ôjuries
have been commendably robustÕ in rejecting the defence in other cases. In
relation to Lord JaunceyÕs statement, this reason is valid and of considerable
importance in supporting the view that the defence should not be allowed for
attempted murder because it would be difficult for the prosecution to disprove
and the jury may seem more favourable as it has not resulted in a death.
The seventh reason was that Lord
Bridge believed that it was for the legislature (Parliament) to decide the limits
of the defence. However, many would argue that surely duress is a common-law
defence, so the judges should ultimately decide its scope as they have the most
experience and knowledge of cases and situational factors. In relation to the
issue of whether Lord Jauncey was correct in that duress should not be
available for attempted murder, this reason is not that significant. As Lord
Jauncey is a Law Lord it stands to reason that he would have sufficient
experience and make sensible and respectful judgments, however, it does not
necessarily mean he is correct. From the case of Gotts it is clear that
the Law LordÕs views upon the matter are not in synchrony as Lord Keith and
Lord Lowry dissented from the five judges who sat. Although, one does agree
that it is up to Parliament to decide the limits of the defence as they have
much advice and expertise at hand and are not significantly pressured for time
and in effect, Parliament making the decision would be much more ÔdemocraticÕ.
Duress should not be available to attempted murderers
In my personal opinion the decision in Gotts to follow the obiter statement made by the Lords in R v Howe (1987) as persuasive precedent was the correct decision as in my opinion it was correct not to open the defence up to attempted murderers as it would Ôopen the floodgatesÕ to a defence that is not available to a crime that is deemed as more vengeful than of murder. Lord Jauncey stated that the Ôintent required of an attempted murderer is more evil than that of a murdererÕ. I believe that it should be up to the Law Commission to review the situation once more and so Parliament can have an up to date view of the situation of the law. Either a review should occur or the defence should be abolished completely which was suggested by many judges such as Lord Griffiths. Duress can then be instead taken into account by the judge in relation to the sentence given to the defendant.
At present the Law Commission follow the minority view from Gotts that the defence should be available for all cases of duress, including murder. The latest proposals are found in the Law Commission Report No. 218, Legislating the Criminal Code: Offences Against the Person and General Principles 1993, it suggests that it should be available for all crimes including murder and attempted murder. However, it recommends that the burden of proof for this defence should be shifted to the defence, as it is with insanity. They felt that if law was changed the Graham tests would be abolished as it was too restrictive and instead all characteristics of the defendant can be taken into account when using the reasonable man test.
In Howe Lord Griffiths stated that ÔWe are facing a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives who live under itÕ. I believe that this statement portrays my opinion with the view that the law should not allow the complete defence for attempted murder and they should stand ÔfirmÕ.
Allowing the defence of duress for attempted murder would make the defence Ôthe legal cloak for unbridled passion and atrocious crimeÕ [Lord Coleridge - Dudley and Stephens]. The law should be allowed to develop case-by-case as new circumstances come to the judgeÕs attention via case circumstances and therefore a rash decision such as making it available for attempted murderers would create uncertainty and be a foolish move.
Conclusion
In conclusion, I agree thoroughly with Lord JaunceyÕs statement in light of relevant cases I believe that it was an appropriate decision. Leaving the defence of duress available to all crimes apart from murder, attempted murder and possibly treason leaves the law more certain. The distinction between murder and attempted murder is extremely minimal and if anything many argue that attempted murder is of a higher severity as more evil intent is required. The law should be left to settle in this area were uncertainty has flourished that has created problems for numerous academics, those in the legal profession and the judges themselves.
Bibliography
- Criminal Law for A2 – Jacqueline Martin
- Criminal Law – Diana Roe
- Criminal Law [2nd edition] – Storey and Lidbury