Firstly,
it is necessary to outline and define the defence of duress in order to
consider Lord JaunceyÕs view in reference to the case
of Gotts in particular, with a full understanding. In
English law, duress is a complete defence, operating in favour of those who
commit crimes because they are forced to or compelled to do so, by either the
circumstances that they find themselves in or by a threat from another person. Duress
can be used as a defence to all crimes, except murder, attempted murder and
possibly treason. It was originally held in the case of DPP for Northern
Ireland v Lynch 1975 that the defence of duress was available to a secondary
party on a charge of murder. This meant it was available for defendants who had
participated in a murder, such as a get-away driver, but had not actually
performed in the act of the killing itself. However, in the case of Howe 1987,
the House of Lords ruled that the defence was not available to anyone charged
with murder, even if they were only a secondary party and had not done the
killing themselves. I will be discussing the case of Howe and other related
cases in more detail later in this essay.
The
Law Commission therefore recognised the logic, that if the defence was going to
be allowed at all, it should be applied to all defences. However, this
recommendation has not been acted upon because it is felt that, in the case of
the most serious crimes such as murder, no threat to the defendant, however
extreme, should excuse commission of the crime, as seen in the case of Elliott
1989. It is also argued that the defence of duress is often faced with abuse.
In the case of Smith 1994, it was stated that "...duress is a unique defence in that it is
so much more likely than any other to depend on assertions which are peculiarly
difficult for the prosecution to investigate or subsequently to disprove."
This particular approach has been adopted by the judiciary, most noticeably by
the House of Lords in the case of R v H 2004, where it was stated that "Defences
that the accused has been set up and allegations of duress, which used to at
one time to be rare, have multiplied. We wish to alert judges to the need to
scrutinise applications for disclosure of details about informants with very
great care." Previously, the prosecutionÕs difficulty was at one time the
greater when the issue of duress had not been raised by the defence until the
trial was under way. To overcome
these problems, the Law Commission in 1993 recommended that the burden of proof
should be shifted to the defendant to establish duress on the balance of
probabilities.
The
principles of the defence of duress
As
outlined in the introduction, the defence of duress can apply to duress of
circumstances or duress by threats. I shall discuss these in detail and relate
them to Lord JaunceyÕs comments in the case of Gotts 1992.
Duress
by threats
Duress
by threats is where a personÕs will is overborne by threats of death or serious
injury, so that he commits an act which he would not otherwise do. Therefore, where
another person threatens the defendant with serious violence unless the
defendant commits an offence, he is acting under duress. In the case of R v
Singh 1973, the Court of Appeal held that a threat to expose the defendantÕs
adultery would not be sufficient threat to Ôoverbear the will of an ordinary
personÕ. For these purposes, the defendant must have a reasonable and genuinely
held fear of death or serious harm, usually in the form of specific threats
directed at the defendant, his immediate family or someone he feels responsible
for. However, in the case of Graham 1982, the threat was immediately and
directly made to the defendant. In the case of Graham the defendant was a
homosexual who lived with his wife and another homosexual man, K. K was violent
and bullied the defendant. After both the defendant and K had been drinking
heavily, K put a flex arounf the wifeÕs neck and told the defendant to pull the
other end of the flex. The defendant did this for approximately one minute. The
wife died as a result. The defendant claimed he had only held the flex because
of his fear of K. The defendantÕs conviction for murder was upheld. In deciding
whether the defence of duress should succeed the jury must consider a two-stage
test. This involves both a subjective and an objective test. These are,
firstly, was the defendant compelled to act as he did because he reasonably
believed he had good cause to fear serious injury or death? (a subjective
test). Secondly, if so, would a sober person of reasonable firmness, sharing
the characteristics of the defendant have responded in the same way, (an
objective test).
Furthermore,
there must be a direct casual link between the threats and the defendantÕs
decisions to break the law. Thus, the defendantÕs normal inhibitions must be
overwhelmed by his or her belief in the efficacy of the threat. This belief
must be reasonable and genuine, in other words both parts of the two-stage test
must be satisified in order for the defendant to be successful with the defence
of duress. The immediacy of the threat is also fundamental in determining
whether a defendant would be successful in pleading duress by threats. For
example, in the case of Hudson v Taylor 1971, two young women who had witnessed
an assualt were intimidated and refused to identify the attacker in court. They
were subsequently charged with perjury but allowed a conditional discharge. The
Court of Appeal later quashed their conviction. At the appeal the prosecution
argued that the girls could have sought police protection. They said that in
deciding whether going to the police for prosecution was a realistic course,
the jury should consider the age of the defendant, the circumstances of the
threats and any risks which might be involved in trying to rely upon police
protection. However, the decision in Hudson and Taylor was criticised by the
House of Lords in the later case of Hasan (formerly Z) 2005. It is now doubtful
that a defendant could use the defence of duress where there was an opportunity
to go to the police. This is a clear illustration of how the defence of duress
is developing the law constantly as increased limitations and restrictions are
now being placed on the defence of duress in order to avoid opening the
floodgates for defendants who feel that pleading duress by threats is a cop
out, as they would easily get away with committing a crime, which obviously
goes against what the justice system is trying to achieve.
Duress
by circumstances
Although
duress by threats has been recognised as a defence for a long time, it id only
recently that the courts have recognised that a defendant may be forced to act
because of surrounding circumstances. This is known as duress of circumstances.
The first case in which this was recognised was the case of Willer 1986. In
this case the defendant and a passenger were driving down a narrow alley when
the car was surrounded by a gang of youths who threatened them. Willer realised
that the only way to get away from the gang was by driving on the pavement. He
did this quite slowly and having made an escape he drove to the police station
to report the gang. The police charged him with reckless driving for having
driven on the pavement and he was later convicted. He appealed and the Court of
Appeal said that the jury should have been allowed to consider whether the
defendant drove Ôunder that the form of compulsion, that is, under duressÕ.
This was followed by the case of Conway 1988. In this case a passenger in the
defendantÕs car had been shot by two men a few weeks earlier. The car was
stationary when the passenger saw two men running towards the car. He thought
that they were the two that were after him. However, they were in fact plain
clothed policemen. Conway was asked to drive off, Conway drove away at some
speed and was charged with reckless driving. The trial judge refused to leave
duress for the jury to consider and the defendant was convicted. On appeal, the
Court of Appeal quashed his conviction and ruled that a defence of duress of
circumstances was avaliable if, on an objective standpoint, the defendant was
acting in order to avoid a threat of death or serious injury. Although these
case involve the regulatory offence of driving it was not until the case of
Pommell 1995 that it became clear that duress of circumstances could be a
defence to all crimes except murder and attempted murder and some forms of
treason. In the case of Pommell the defendant was found by the police lying in
bed with a loaded sub-machine gun against his leg. He told the police that he
had taken it off another man who was going to use to do some people some
damage. The defendant said that he has intended getting his brother to give the
gun into the police station that morning. At his trial the judge ruled that his
failure to go to the police straight away preventing him from having any
defence. The defendant was consequently convicted. He appealed to the Court of
Appeal who held that the defence of duress of circumstances was avaliable for
all offences except murder, attempted murder and some forms of treason. They
quahed the defendantÕs conviction and sent the case for retrial.
In
relation to Lord JaunceyÕs opinions it is clear to see why he feels so strongly
that the defence of duress should not be given to an attempted murder as
previous cases have demonstrated why this should be so. It would be unjust for
the courts to open the floodgates for potential attempted murders to be allowed
to get away scott free of a serious crime. The courts would also be
transmitting the message that it is a normal practice to attempt to murder
somebody as there would be a defence avaliable to them. I feel that it is
necessary to also discuss some principles of necessity and the case of Dudley
and Stephens in particular. The defence of necessity has similarities with the
defence of duress of circumstances, yet the courts have been reluctant to
recognise necessity as a defence in its own right. The case of Dudley and
Stephens 1884 helps to illustrate Lord JaunceyÕs opinions on the outcome of the
case of Gotts.
Dudley
and Stephens 1884
In
this case the two defendants were shipwrecked with another man and V, a 17 year
old cabin boy, in a small boat about 1600 miles from land. After drifting for a
period of 20 days and having been nine days without food and seven days without
water, the two defendants killed and ate the cabin boy. Four days later they
were picked up by a pasing ship and on their return to England were convicted
of murder. Their claim of necessity to save themselves from dying was rejected.
This case set a binding precedent – that necessity is no defence to
murder. It is interesting to note that although Dudley and Stephens were
convicted of murder and sentenced to be hung, their sentence was commuted to a
mere six monthsÕimprisonment. In Dudley and Stephens the charge was of murder,
so it can be argued that the law on necessity is in line with the law on
duress, as duress is also not avaliable to a charge of murder. Although this
case is outdated it still illustrates that even in the 19th century
the defence of necessity forbided the defence to a charge of murder, thus
setting a precedent for any future cases. Therefore, Lord Jauncey is correct in
his views that the defence of duress should as a result be unavaliable to a
defendant charged with attempted murder. Attempted murder is just as serious as
murder itself, as the intent is still present which results in the death of an
innocent human being. It would be ludicrous to imagine the courts acquitting a
defendant of a charge of attempted murder because duress of necessity was an
accepted defence.
I
shall now look at the case of Gotts in close detail to enable a closer analysis
of Lord JaunceyÕs comments resulting from the outcome of the case.
R v
Gotts 1992
In
Gotts, the defendant, aged 16, seriously
injured his mother with a knife. In his defence to a charge of attempted murder
he claimed that his father had threatened to shoot him unless he killed his
mother. The trial judge ruled that such evidence was inadmissible since duress
was not a defence to such a charge. The defendant pleaded guilty and then
appealed. The House of Lords held that the defence of duress could not be
raised where the charge was one of attempted murder. As a result of this case
Lord Jauncey stated the following: "The reason
why duress has for so long been stated not to be available as a defence to a
murder charge is that the law regards the sanctity of human life and the
protection thereof as of paramount importance. Does that reason apply to
attempted murder as well as to murder? As Lord Griffiths pointed out [in Howe]
Ôintent to kill must be proved in the case of attempted murder but not
necessarily in the case of murder. Is there any logic in affording the defence
to one who intends to kill but fails and denying it to one who mistakenly kills
intending only to injure?Õ From the case facts and the inevitable outcome it is
clear to see how Lord Jauncey may have reached his
opinions. If the courts had allowed the defence of duress it would undermine
the process of English law and previous cases which have not accepted the
defence of duress or necessity to a charge of murder, attempted murder and
treason. It would allow the floodgates to open for potential criminals to
envisage that if they were to commit attempted murder or murder itself they may
be able to get away with a lighter charge or an acquittal by pleading duress or
necessity.
Attempted
murder was also covered by the rule in the case of Howe. In this case the
defendants and others took part in torturing and abusing a man who was then
strangled by one of the others. On a second occasion another man was tortured,
abused and then strangled by the defendant. The defendant claimed that he had
taken part in the killings because of the threats directed towards him. The
trial judge ruled that duress was available to the defendant for the first
killing where the defendant was only a secondary party to the killing, but that
it was not available for the second killing where the defendant was a principal
offender. The Court of Appeal ruled that this was correct
but the House of Lords took a different view and held that duress was not
available as a defence for either murder. The reason why duress was held not to be a
defence was explained by Lord Halisham when he
said in the judgment:
ÔI do not at
all accept in relation to the defence of murder it is either good morals, good
policy or good law to suggest É that the ordinary man of reasonable fortitude
is not to be supposed to be capable of heroism if he is asked to take an
innocent life rather than sacrifice his ownÕ. In the case of Howe the House of
Lords said they thought the defence should not be available on a charge of
attempted murder, as in the case of Gotts. This was
an obiter dicta statement and so not binding. However, the difference in Gotts was that the Court of Appeal decided to follow this
obiter statement. From the decisions of both Howe and Gotts
it is reasonable to side with the views of Lord Jauncey
as his views are both legally and morally correct. Why should a defendant be
allowed a defence for killing an innocent human being? Of course there can be
arguments against his view as the defendant may have been put in a situation
where he feels he has no other choice but to kill the victim rather than to
sacrifice his own life. However, in the eyes of the law, the fact of the matter
is that the defendant has still prematurely ended the life of an innocent human
being and this should not be a matter taken lightly by the courts, hence why
the defences of both duress and necessity are under any circumstances accepted
as a defence by the courts.
Conclusion
In
conclusion, it is clear that Lord JaunceyÕs views may
lead to arguments among many. Logically, morally and legally, his comments make
clear sense and most people of reasonable fortitude, i.e. the jury are also
likely to agree with his comments. It seems only right that a defendant who has
ended the life of an innocent human being under the QueenÕs peace, either
intentionally or due to the circumstances or threats he may have been under, should never be granted the defence of either duress
of necessity. After close examination of the relevant case law I have no other
alternative but to agree with Lord JaunceyÕs
statement as it upholds the purpose and the reason why this country has one of
the most successful justice systems. If the courts were to allow the defence of
either duress or necessity, it would undermine the justice system, allowing the
public to believe that killing people is a normal practice
which you may or may not face punishment for.