Attempted Murder in UK Law

Nevertheless and in spite of this, and in the face of the somewhat intemperate criticism to which this type of distinction has sometimes been subjected since Abbott I am somewhat relieved to know that the views of my noble and learned friends on the main issue permit me to escape from such niceties and simply to say that I do not think that the decision in Lynch can be justified on authority and that, exercising to the extent necessary, the freedom given to us by the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 which counsel for the respondent urged us to apply, I consider that the right course in the instant appeal is to restore the law to the condition in which it was almost universally thought to be prior to Lynch.

I am not, perhaps, persuaded of this last point as much as I should. More persuasive, perhaps, is the point based on the availability of the defence of duress on a charge of attempted murder, where the actual intent to kill is an essential prerequisite. It may be that we must meet this casus omissus in your Lordships' House when we come to it. It may require reconsideration of the availability of the defence in that case too.

As I can find no fair and certain basis upon which to differentiate between participants to a murder and as I am firmly convinced that the law should not be extended to the killer, I would depart from the decision of this House in Director of Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653 and declare the law to be that duress is not available as a defence to a charge of murder, or to attempted murder.

Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim's death. Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result.

The level of sentence for attempted murders of this particularly serious kind should now be generally higher whilst retaining a proportionate discount from the term appropriate to be served for the full offence. The judge in the present addressed himself to what the minimum term for murder would have been under the pre-2003 Act guidelines.

It follows that it is only in the correspondingly graver cases of attempted murder that increased level of sentencing is likely to be required. For murders lacking in the more serious aggravating factors the court anticipated no general increase in sentencing levels. It follows that in attempted murders lacking such factors no general increase in sentences is likely to be required. The Court in Sullivan emphasised the wide range of culpability in murder cases; see paragraph 7.

Attempted murder, unlike murder, always requires an intent to kill. The range of culpability for the offence is nevertheless wide. There is a proportion of cases in which a defendant is convicted of attempted murder and in which, had the victim died, he would have been convicted of manslaughter rather than murder. Thus in such cases the basis for comparison in terms of proportionality when sentencing for attempted murder would be the sentence appropriate not for murder but manslaughter.