Murder Charge in UK Law

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.

I cannot pretend, however, that I regard the outcome as satisfactory. It is not logical, and I do not think it can be just, that duress should afford a complete defence to charges of all crimes less grave than murder, but not even a partial defence to a charge of that crime. I say nothing as to treason, for that is not here in issue. I am persuaded, nevertheless, to agree with my noble and learned friend by three considerations.

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.

Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer 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 defendant's actions and that the defendant appreciated that such was the case.

In the eyes of the law the foetus is taken to be a part of the mother until it has an existence independent of the mother. Thus consideration of whether a charge of murder can arise where the focus of the defendant's intention is exclusively the foetus falls to be considered under the head of transferred malice as is the case where the intention is focused exclusively or partially upon the mother herself.

For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.