Case of R v Fright, Chary and Windy
1st draft as written by Emma McAvoy.
Appeal issue: The defence of necessity should not have been withdrawn.
The defence of necessity has not been accepted as available for murder by many cases the first of which was Dudley and Stevens. Source 10 states that necessity is a valid defence to crimes other than murder ñ therefore courts are prepared to recognise the defence but would not allow its use in murder cases. This would imply that the appellants could not use the defence for any of the charges.
However these decisions were contradicted in the case of Re A (children) discussed in sources 11 and 12. In source 11 it was stated that the law had allowed an escape from a murder [Question from Dr J - Did Re A involve murder? Answer = No, because it was a lawful killing and thus D v S is not binding and can be distinguished] charge by concluding that the operation was the lesser of two evils and therefore legal. This appears to indicate that some kind of necessity allowed the operation to take place and therefore could indicate that the defence of necessity may sometimes be available for murder if the courts see fit based on exceptional circumstances. It is not certain that the circumstances faced by the appellants would qualify as such a case but the decision would open the possibility of using this defence in the appeal against both charges. This case was decided in the House of Lords and is therefore binding on any lower courts (such as the Court of Appeal) and on the House of Lords itself unless they used the Practice Statement (as mentioned in source 1) to overrule this case in future.
In source 12 the rules of necessity were considered in relation to Re A (children) with regard to extension of the defence to cover the situation faced by the doctors wishing to operate. The court accepted that the law could expand case by case and that this was an appropriate situation for such action. As in source 11 it was held that the law should allow a loophole through choosing the lesser of two evils. Perhaps therefore the appellants could argue that if they had not acted as such while climbing then three people may have died rather than just one (as they believed Luckless would) ñ there is a possibility that this could be viewed as the lesser of two evils in a similar way to the loss of one twins life rather than both, perhaps allowing the court to grant use of the defence of necessity for the appellants against the first charge. Also in terms of the second charge it is possible that the escape of Fright, Chary and Windy and probable death of Luckless as opposed to the death of all four men would be the lesser of two evils and more viable in the eyes of the law.
Alternatively the appellants could attempt to plead duress instead as the case of DPP for N. Ireland v Lynch allowed the defence of duress to be used against charges of attempted murder and for secondary offenders (but not for principal offenders). This would imply that the appellants could use this defence against charges of attempted murder. This House of Lords decision would bind any lower courts including the Court of Appeal and the House of Lords itself unless it was overruled [Dr J - it was effectively - but not expressly overruled].
Source 4 however states that duress is not available as a defence to murder or attempted murder as decided in R v Howe following persuasive precedent from a Privy Council decision in R v Abbott. However in order to come to this decision the Court of Appeal needed the previous House of Lords decision in DPP for Northern Ireland v Lynch to be overruled. This did not occur immediately so the Court of Appeal refused to follow Lynch (this could be persuasive precedent for the House of Lords to consider). When the case reached the House of Lords they did agree and overruled the decision in Lynch - this decision implied that the appellants could not use the defence of duress against either charge of attempted murder, just as principal offenders could not.
In source 5 the case of R v Gotts was decided in the House of Lords referring to judgements in the case of R v Howe, which bound the Court of Appeal and House of Lords. In this case it was confirmed with certainty that duress was not available as a defence for a charge of attempted murder. In fact Lord Jauncey believed that the defence of duress should not be allowed for any crime and that instead factors of that nature should be considered during sentencing, although realises that this is not possible ñ the defence cannot be erased now that it has been held to exist by the courts. However if the court dealing with the case took this view the appellants could not use the defence of duress against the charges of attempted murder.
This view is supported by source 9, which states that the defences of duress and necessity have been recognised so that a defendant can break the law to prevent a greater evil but the law has not fully recognised the defence of necessity and it was especially not a defence to murder as in Dudley and Stephens. However although this was the original precedent for cases of this type it was only a Divisional Court decision ñ although it binds lower courts it would only be persuasive precedent in the Court of Appeal or House of Lords. This also implies that the appellants could not use the defences of either necessity or duress against charges of attempted murder.
In source 10 there are ideas for reform of the law in this area ñ it states that the defence of necessity was already included where needed in general for other crimes and that it should be abolished as a general defence to avoid use against charges of murder or attempted murder. However it was also said that duress should be extended to all crimes, appearing to include murder and attempted murder. These proposals (if implemented) would mean that the appellants could not use the defence of necessity but could use the defence of duress - however this proposal was not viable and instead the defence known as duress of circumstances (in similarity to and an extension of necessity) was proposed. The defences are very similar making the proposals more difficult to implement. Therefore the position still stands that in most crimes the defendant should not be blamed if necessity is present, but in murder or attempted murder the defence cannot be used. This means that the appellants still cannot use either defence against the charge of attempted murder.
Appeal issue: Misdirection to the jury regarding the mens rea needed for charges of attempted murder.
The appellants could attempt to argue that they did not have direct intention to kill when acting. The mens rea for attempted murder is the same as that required for murder using the virtually certain test developed in the cases of Nedrick and Woollin. It seems based on this test that the appellants did have intention to kill even if it was not direct - their actions should have caused them to realise that death or serious harm would be a virtually certain consequence and therefore the jury were entitled to infer intention and find them guilty in this case.
However the judge may have misdirected the jury by telling them that they could infer intention if the appellants foresaw that their actions were highly likely to result in his death (not virtually certain). This meant that the jury believed a lesser degree of mens rea was needed for guilt when actually the judge should have directed them in terms of the virtually certain test from Nedrick. If the judge misdirected regarding the degree of intent required for attempted murder then their convictions would have to be quashed as a result regardless of their guilt or innocence (as seen in Woollin when the words ësubstantial riskí were used instead of virtually certain.)
[Dr J - This section is far too thin to be classed as an adequate answer.]