R v Gotts
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Jauncey of Tullichettle,Lord Lowry,Lord Browne-Wilkinson |
| Judgment Date | 20 February 1992 |
| Judgment citation (vLex) | [1992] UKHL J0220-1 |
| Date | 20 February 1992 |
| Court | House of Lords |
[1992] UKHL J0220-1
Lord Keith of Kinkel
Lord Templeman
Lord Jauncey of Tullichettle
Lord Lowry
Lord Browne-Wilkinson
HOUSE OF LORDS
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
My Lords,
I have read the speech to be delivered by by my noble and learned friend Lord Lowry, and I agree with it.
The important points appear to me to be these:
- At the time when the appellant attempted to murder his mother there nowhere existed any clear statement of law to the effect that the defence of duress was unavailable to one charged with attempted murder. There is much to be said in favour of the view that the generally accepted wisdom then was that the defence was only withheld in cases of murder and treason. 2. Murder is a crime in a category of its own. The fact that it involves the actual destruction of life makes its nature special. That special nature is recognised by the mandatory life sentence which follows on proof of guilt, irrespective of the degree of moral blameworthiness which may be involved, and warrants a distinction, so far as the defence of duress is concerned, between it and other offences against the person, including attempted murder. 3. The principal argument against allowing the defence of duress to a charge of attempted murder appears to be what is said to be the illogicality of denying the defence to one who has killed while intending only to wound with intent to inflict grievous bodily harm, while admitting it in the case of one who has intended to kill but chanced to fail to do so. Considering that the intent is more evil in the latter case than in the former, so it is claimed, the person who has intended to kill but failed snouid not be treated more leniently. But I find it difficult to accept that a person acting under duress has a truly evil intent. He does not actually desire the death of the victim. Where a man has been compelled by threats against his wife and children to drive a vehicle loaded with explosives into a checkpoint, with the object of killing those manning it, but that object has fortunately failed, the man is likely to be as relieved at the outcome as anyone else. It would be hard to condemn him as having had an evil intent. The logical solution may to be to withhold the defence in the case of all crimes, leaving the circumstances of the duress to be taken into account in mitigation. But that solution is not open to the court in the present state of the law. It could only be brought about by Parliament. 4. In many cases it may be a nice question whether the accused is guilty of attempted murder or only of wounding with intent to inflict grievous bodily harm. It is unsatisfactory that the defence of duress should be available in the latter case but not in the former. 5. Although it is open to your Lordships' House to develop the common law to meet changing economic circumstances and habits of thought (as your Lordships have recently done in Reg. v. R.[1991] 3 W.L.R. 767), I am unable to perceive any change of that character such as to warrant it now being definitively laid down that duress is no defence to a charge of attempted murder. The complexities and anomalies involved in the whole matter of the defence of duress seem to me to be such that the issue is much better left to Parliament to deal with in the light of broad considerations of policy. I would allow the appeal.
My Lords,
There is a fundamental divergence of opinion, expressed on the one hand by the speeches of Lord Keith of Kinkel and Lord Lowry and on the other hand by the speech of Lord Jauncey of Tullichettle. In the present case this is no bad thing because I agree with Lord Keith that Parliament ought to decide the issue as a matter of principle. The different opinions expressed in this House, discussions in academic circles and possible consideration by the Law Commission should assist Parliament to reach a decision. In the mean time we must do our best. I agree with the speech of Lord Jauncey and do not consider that I can improve on it. I would dismiss the appeal for the reasons he gives.
My Lords,
This appeal raises the important question of whether duress is available as a defence to a charge of attempted murder. At the outset of the trial a submission was advanced on behalf of the appellant who was charged inter alia with attempted murder to the effect that the defence of duress was open to him. The trial judge rejected the submission whereupon the appellant pleaded guilty to the charge and was sentenced to a period of probation. It is unnecessary to go into the details of the offence but it is clear that in sentencing the appellant the judge took into account the facts which would have been relied upon had duress been available as a defence. The Court of Appeal dismissed the appeal, granted a certificate under section 33(2) of the Criminal Appeal Act (1968) and refused leave to appeal to Your Lordships' House. Your Lordships subsequently gave leave [1991] 1 W.L.R. 448.
It is agreed that there is no English authority which deals directly with the availability of the defence of duress to a charge of attempted murder, but Mr. Farrer, for the appellant, submitted that this is because it has long been recognised that the defence of duress is available in respect of all crimes except murder and treason, and was unavailable for a short time for robbery. Hale's Pleas of the Crown (1736) p. 51 deals with duress in the context of these last-mentioned crimes committed in time of peace in the following passage:—
"… If a man be menaced with death, unless he will commit an act of treason, murder, or robbery, the fear of death doth not excuse him, if he commit the fact; for the law hath provided a sufficient remedy against such fear by applying himself to the courts and officers of justice for a writ or precept de securitate pacis (d).
Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent: …"
In 1766 Blackstone in his Commentaries on the Laws of England, 2nd edition, vol. 4 pp. 29-30 said,:—
"Another species of compulsion or necessity is what our law calls duress per minas; or threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanours; at least before the human tribunal … This however seems only, or at least principally, to hold as to positive crimes, so created by the laws of society; and which therefore society may excuse; but not as to natural offences so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person; this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent."
Mr. Farrer submitted that given the development during the seventeenth century in the Star Chamber of the law relating to attempts to commit crimes it is inconceivable that Hale and Blackstone were unaware of this and that the omission to refer to attempted murder in the context of duress demonstrated that this crime was not in the same position as murder. I think that this is taking too much from the eighteenth century writings. They appear to me not to be setting out exhaustive lists of crimes where duress is not a defence but rather to be giving examples of crimes where it is. Furthermore at the time of the writings an attempt to commit any crime was merely a misdemeanour so that attempted murder would have been a far less serious offence than many others such as robbery to which Hale refers. It was not until the passing of the Offences Against The Person Act (1861) that attempted murder was, by section 15 thereof, made a statutory felony. It is reasonable to infer that before that date cases involving injury to the victim which would nowadays be charged as attempted murder would have been charged as some form of assault constituting a felony. In any event the defence of duress or compulsion appears to have been very rarely relied upon. Sir James Fitzjames Stephen in his History of the Criminal Law of England, published in 1883, wrote at p. 105 that as far as he knew there were only three forms of compulsion of which the law would take cognisance, namely (1) compulsion of a husband over a wife (2) compulsion by threats of injury to person or property and (3) compulsion by necessity. He considered that hardly any branch of the law of England was more meagre or less satisfactory than the law on compulsion and that the law on marital compulsion was both vague and bad as far as it went. He stated it as follows:—
"If a married woman commits a theft or receives stolen goods, knowing them to be stolen, in the presence of her husband, she is presumed to have acted under his coercion, and such coercion excuses her act; but this presumption may be rebutted if the cirumstances of the case show that in point of fact she was not coerced. It is uncertain how far this principle applies to felonies in general. It does not apply to high treason or murder. It probably does not apply to robbery. It applies to uttering counterfeit coin. It seem to apply to misdemeanours generally."
In relation to compulsion by threats of injury he stated at p. 106:—
"In the course of nearly thirty years' experience at the bar and on the bench, during which I have paid special attention to the administration of the criminal law, I never knew or...
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