In source four 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 Aaron Shutt (February 2008).

Introduction

This essay will look at the development of the law on the defence of duress in relation to the offence of murder and the implications that has led to with attempted murder. This essay will look at the case look that has led to the evolution on the law of duress in relation to murder and attempted murder, as well as looking at whether this essay agrees with Lord Jauncey’s view that the defence of duress should not be available to an attempted murderer just like a murderer. This essay will conclude that it does not agree with Lord Jauncey’s view and that the defence should be available to an attempted murderer.

Evolution of the defence of duress

The defence of duress is a common law offence, which has been built up over the years on very infamous cases which have caused a lot of controversy and talking points because the law in this area is very complicated with ‘fine lines’ in many aspects of the defence. The defence is also very closely linked with the defence of necessity. In the case of Dudley and Stephens (1884) where two sailors and a cabin boy were stranded in a life boat for many days, finally the two sailors killed the cabin boy to eat him; unless they claimed they would have all died. They pleaded the defence of necessity. The courts found them guilty and said that necessity was no defence to murder. This has been the precedent in the law of necessity ever since, it has also been used by courts for the defence of duress when a defendant has murdered someone. It has stood in common law that the defence of duress was available to all offences except murder and some forms of treason.

In the case of DPP for Northern Ireland v Lynch (1975) a taxi driver had been threatened with his life if he did not drive terrorists to a hit point where they killed a policeman. He was charged with aiding and abetting a murder, so was a principal in the second degree to murder. His conviction was over turned in the House of Lords which said that the defence of duress was available to principals in the second degree of murder. So as the law stood only those who actually committed the crime of murder could not use the defence of duress. This makes sense as the secondary parties have not taken another’s life instead of their own and they were only there due to the threats made to them, they have no intent to kill.

The next big case that involved murder and the defence of duress was the case of Howe (1987) where a man was part of a gang. On one occasion he partook in the torturing of another man and then another member of the gang killed him. On a second occasion Howe and another man tortured and killed someone. He was charged with murder as principal in the second degree and in the first degree murder for the offences respectively. The trial judge and Court of Appeal agreed that Howe had a defence of duress for the first offence but not the second. However the case went to the House of Lords which said that he did not have a defence for either murder and over turned the case of Lynch (1975) using the practice statement. The House of Lords had instead agreed with the ratio in Dudley and Stephens (1884) that duress was no defence to murder as had been the common law before the case of Lynch. The Law Lords gave many reasons as to why the defence of duress was not available to a murderer; this essay will discuss these points later and relate them to the case of Gotts (1992) and to whether this essay agrees with Lord Jauncey’s view in relation to the points made in Howe. This essay will first look at the case of Gotts (1992).

Gotts (1992)

The case of Gotts is one of attempted murder. A sixteen year old boy was threatened by his father to kill his mother or he would beat him up. The boy did as he said but did not manage to kill him, only serious injuring her and was convicted of attempted murder. His case went to appeal on the grounds that the defence of duress was not made available to him. On appeal the Court of Appeal upheld the conviction by three to two. It was not a unanimous decision which shows that two of the Lord Justices of Appeal did not agree with Lord Jauncey’s view that, “I can see… no justification in logic, morality or law in affording to an attempted murderer the defence which is withheld form a murderer.” This shows that the law as it stands is not as it should be as some people believe. This essay will look further into why this may be and whether they are justified in believing that duress should be available to an attempted murderer.

Reasons for duress not being available to the offence of murder and its relation to Lord Jauncey’s comments

Should be capable of heroism

Lord Hailsham said in his judgement that a person must be capable of heroism and should take his or her own life instead of taking someone else’s. Murder is a results crime and that a person must die for the offence to be committed. The Law Lords in Howe felt that a person even under duress should not be capable of killing another. They must be prepared to take their own life instead. This is inline with the common law in England that the sanctity of life is paramount.

If we related this to the offence of attempted murder no one has been killed and so no offence has been committed, the whole point of attempted crimes is that they are inchoate. How can it be that the defence of duress is not available to an attempted murderer when they have not committed the crime of murder? At most they have seriously injured someone; in the case of Gotts the son stabbed his mum. The result, actus reus, of the crime is far less than that of murder and murder is an exceptional crime so it would make sense that the defence of duress should be available to attempted murderers as the actus reus is far less than that of murder.

However one may argue that the actus reus of a crime is not all we should look at, in fact we should also look at the mens rea, intent, of the defendant. For murder the mens rea is either, “malice aforethought express or implied.” This means the intent to kill or cause serious harm. The mens rea for an attempted murderer is the intent to kill. This is an even higher and more specific intent than that of a murderer. The majority of the Law Lords as well as many scholars argue that this means that if on a charge of murder a defendant can not use the defence of duress then neither should an attempted murderer as his or her intent is far greater and more maliciously than that of a murder. For instance a defendant who intends to cause serious harm and kills them unintentionally can not use the defence of duress but if someone intended to kill someone but botched it up they would have been allowed the defence as it is not a charge of murder. This seems illogical and so it would appear that Lord Jauncey is correct in saying it is logical not to allow the defence to an attempted murderer when it is not allowed for a murderer which has a lesser intent than that of the former offence. In this sense I agree with the statement because the person has to intend to kill and they should never have a defence if they intend to kill. One may argue that if under duress a defendant does not want to kill, but they must still intend to kill even if they do not do it maliciously. However, if duress was available to attempted murder and people knew of this when under duress and told to murder someone, and deliberately only injured the person because they knew that the defence was available for attempted murder it could reduce the pressure on the person under duress and allow those who truly are innocent and had no choice to get off, like Gotts. The issue is that any defendant could say they were under duress when they are charged with attempted murder and so have a defence.

Not taking lesser of two evils

In many cases to do with Duress of threats and circumstances and the defence of necessity it is seen that the defence is available where the defendant has taken the lesser of two evils. Although not a criminal case, the case of Re A children (2000) shows that the defence of necessity would be available because the would be offence would be the lesser of two evils. In this case two babies were born Siamese. One of the babies was solely reliant on the other. The doctors made an application to the Court of Appeal to operate; this would ultimately kill the weaker one but mean the fully developed child could live. The Court granted the application making the operation legal and if the dependant baby died it would not be illegal. The reason behind one of the judge’s decisions was that it would be a lesser of two evils as only one of the two babies would die but if nothing was done then both would inevitably die soon. This case as well as others show that a defence of duress is available when it is clear the defendant has committed the lesser of two evils.

This can not be said for those who committed murder or attempted murder. It is a well held belief that the sanctity of life is most important and that nothing should deter this. In the offence of murder and attempted murder the defendant is not taking the lesser of two evils as they have either killed or tried to kill someone instead of take their own life and have violated the sanctity of life. And so if the defence of duress is withheld to murderer on this ground it should also be for an attempted murderer. So this essay would agree with Lord Jauncey that in law and morality the defence of duress should not be available to an attempted murderer as it is not to a murderer.

Allowing the defence would overrule earlier decisions

The reason for departing from Lynch (1975) in the case of Howe (1987) was that it would go against the decision in Dudley and Stephens (1884) which had long been held as good law on necessity that the defence is not available to those who commit murder. It has long been seen that this is also the law for duress. The Law Lords in Howe (1987) felt that they could not depart from the ratio in Dudley and Stephens and so said that the defence of duress was not available to those who commit murder. This essay believes however that this does not necessarily mean that attempted murderers should not be allowed the defence on these grounds. In fact the common law on this area of duress clearly states that the defence of duress is available to all offences except murder and some forms of treason. This essay believes that Lord Jauncey is incorrect when he says that he can not justify affording the defence to an attempted murderer because of the law as it stands; as murder and attempted murder are two separate offences and so the courts can distinguish between them and should not be bound by the other. Lord Jauncey is not obligated to refuse the defence on the grounds it would be going against Dudley and Stephens (1884) because he could distinguish the offence and so pass a different sentence if he wanted.

Easy to raise; hard to disprove

Another issue raised in the case of Howe is that if the defence of duress was available to the offence of murder then every defendant would use the defence and it would be hard to prove that the defendant was not under duress and so a murderer can get off killing someone. This also could be said for attempted murderers. However this essay would argue that actually any defence available for any defence makes it easier for someone to get off a defence, which maybe they shouldn’t have. At the end of the day in criminal cases it is up to a jury to find someone guilty or not, so even if the defence of duress is available to a murderer or attempted murderer it may not be enough if the jury think they are guilty and so find them so. From this point of view it would seem that Lord Jauncey is incorrect and that logic would suggest that the jury would either find a person guilty or not even if the defence was available or not. In the case of Gotts if the defence was available then a jury would probably accept it and acquit Gotts because of his age and the circumstances that had arisen, however in the case of Howe if the defence was a available this essay believes that a jury would still convict the defendant because he had joined a gang and killed someone. This essay believes that Lord Jauncey’s statement is incorrect and that the defence should be allowed to the offence of attempted murder and that it should be up to the jury to allow it or not.

Conclusion

It is the conclusion of this essay that it does not agree with Lord Jauncey’s statement that because the defence of duress is not allowed for duress that it should not be allowed for attempted murderers. This essay believes that although the intent required is higher, the actual crime is much less and murder is a unique offence. It also believes that in some instances that an attempted murderer should be allowed the defence of duress and it should be up to the jury as to whether the defence succeeds or not by either finding them guilty or not. This essay also shows that the Courts are not bound by Dudley and Stephens (1884) as Howe states, as well as Lord Jauncey in Gotts, it can be distinguished that the two offences are separate and can allow the defence which would be inline with the common law stance which says the defence is open to all offences except murder and treason. So this essay disagrees with Lord Jauncey’s view.