° a ® @ x R v Gotts COURT OF APPEAL, CRIMINAL DIVISION LORD LANE CJ, OWEN AND PILL JJ 15, 23 JANUARY 1991 Criminal law ~ Murder — Attempt — Defence ~ Duress ~ Whether duress available as defence to charge of attempted murder. The victim, who was the appellant’s mother, had left the family home after arguments with the father and had gone with two of the younger children to a women’s aid refuge. One morning the mother left the refuge in order to take one of the younger children to school. The appellant, then aged 16, armed with a knife supplied by his father concealed himself on the route which he knew the mother would take and when she appeared ran up behind her and stabbed her. The mother was seriously injured. The appellant was charged with attempted murder and wounding with intent. He pleaded not guilty, his defence being that he had been ordered by his father to kill his mother under the threat that, if he did not do so, he himself would be shot. The judge rejected a submission that the defence of duress was as a matter of law open to the appellant in relation to the charge of attempted murder. The appellant then pleaded guilty to attempted murder and was made the subject of a probation order for three years. He appealed against his conviction, Held ~ Duress was not a defence to attempted murder. Accordingly the trial judge's ruling had been correct and the appeal would be dismissed (see p 8 c d f, ost). PoDictum of Lord Griffiths in R v Howe (1987) 1 AIER 771 at 700 applied. Per curiam. If duress is not a defence to attempted murder, the sentence is at large and the court can tailor the sentence to the degree of culpability which the evidence discloses (see p 8 e f, post). Notes For duress as a defence to a criminal charge, see 11(1) Halsbury’s Laws (4th edn reissue) para 24, and for cases on the subject, see 14(1) Digest (Reissue) 57-59, 266— 280. Cases referred to in judgment Abbott v R [1976] 3 All ER 140, [1977] AC 755, [1976] 3 WLR 462, PC. Foakes v Beer (1884) 9 App Cas 605, [1881~5] All ER Rep 106, HL. Lynch v DPP for Northern Ireland [1975] 1 All ER 913, [1975] AC 653, [1975] 2 WLR 641, HL; rvsg [1975] NI 35, NICCA. R v Howe [1987] 1 All ER 771, [1987] AC 417, [1987] 2 WLR 568, HL. Cases also cited R v Dudley and Stephens (1884) 14 QBD 273, [1881-5] All ER Rep 61, DC.2 All England Law Reports [1991] 2 AILER R v Hudson, R v Taylor [1971] 2 All ER 2.44, [1971] 2 QB 202, CA. R v Steane [1947] 1 All ER 813, [1947] KB 997, CCA. Appeal against conviction Benjamin Zebedee Isaiah Gotts pleaded not guilty at the Crown Court at Chelmsford on 23 October 1989 before Judge Rant QC and a jury to attempted murder (count 1) and wounding with intent (count 2). At the outset of the trial the judge overruled a submission on behalf of the defence, in the absence of the jury, that the defence of duress was, as a matter of law, open to the appellant on a charge of attempted murder. Thereupon the appellant changed his plea on count 1 to one of guilty and was made the subject of a probation order on conditions for three years. The jury were discharged from returning a verdict on count 2. The judge granted a certificate under s 1(2) of the Criminal Appeal Act 1968 that a point of law was fit to be argued, namely whether duress was available as a defence to a charge of attempted murder. The facts are set out in the judgment of the court. DJ Farrer QC and Charles Miskin (instructed by Gepp & Sons, Chelmsford) for the appellant. Graham Parkins QC and Simon Spence (instructed by the Crown Prosecution Service, Essex) for the Crown, Cur adv vult 23 January 1991. The following judgment of the court was delivered. LORD LANE GJ. The appellant, Benjamin Zebedee Isaiah Gotts, was charged at the Crown Court at Chelmsford upon an indictment containing two counts: attempted murder (count 1) and wounding with intent (count 2). To both these counts he pleaded not guilty. At the outset of the trial the learned judge heard submissions in the absence of the jury by counsel for the appellant to the effect that the defence of duress was as a matter of law open to the appellant in relation to the charge of attempted murder. That submission failed. The judge having rejected it, the appellant pleaded guilty to attempted murder and in due course was made the subject of a probation order for three years with certain conditions which it is not necessary to set out. The jury were discharged from returning a verdict on count 2. The appellant was anxious to appeal against the judge’s ruling, and, although this was a point of law which gave a right of appeal, the judge granted a certificate in the following terms, namely: A point of law is fit to be argued further, namely, whether duress is available as a defence to a charge of attempted murder.” The history of events entails an appalling catalogue of violence, depravity and abuse into which, fortunately, it is not necessary to go in any depth. The appellant’s contention was that he, then aged 16, had been ordered by his father to kill his mother under the threat that, if he did not do so, he himself would be shot. The mother had earlier taken herself off with two of the younger children to a women’s aid refuge in Chelmsford. She had also obtained an injunction against the husband. On 14 December 1988, shortly before 9 o'clock in the morning, the mother left the refuge in order to take one of the younger children to school. The appellant, as ordered by his father and armed with a knife supplied by his father, had concealed himself on the route which he knew the mother would take. The appellant ran up behind her and stabbed her. He was then restrained byCA Rv Gots (Lord Lane CJ) 3 bystanders, but the mother had suffered serious injuries, including a punctured left lung. There was internal bleeding and, if she had not had urgent medical treatment, she might very well have died. There was no doubt that the appellant had intended to kill his mother. There seems to have been very little doubt but that what he said about his father was true. That was so despite the fact that at first he made no mention of any threats from his father, confining his allegations to the way in which, according to him, he had been treated by his mother. It was only later that there came to light the facts on which the allegation of duress was based. Duress as a defence to murder has had, at least in modern times, a chequered history. The earlier commentators were in no doubt that it was not a defence to murder, no distinction being drawn between the various degrees of participation in the crime. In Lynch v DPP for Northern Ireland [1975] 1 All ER 913, [1975] AC 653 it was held by a majority decision of the House of Lords that a secondary participant in a murder (to whom it is convenient to refer as a principal in the second degree) was entitled to advance the defence of duress. Not long afterwards in Abbott v R [1976] 3 All ER 140, [1977] AC 755 the Privy Council, again by a majority, held d that the defence was not open to the person who had actually done the killing (che principal in the first degree). It was, as is pointed out by textbook writers, an unsatisfactory situation (see for example Smith and Hogan Criminal Law (6th edn, 1988) p 232). This is so because the principal in the first degree—the hand that does the killing—is by no means always the most blameworthy of those involved, and in many situations he may be the instigator of, and the prime mover in, the killing. In R v Howe [1987] 1 All ER 771, [1987] AC 417 the House of Lords had the opportunity to resolve the anomaly which these decisions had brought about. They could either have declared that duress was a defence open to all categories of murder or they could have, so to speak, withdrawn the defence from the principal inthe second degree and equated him with the actual killer, denying the defence to both categories. They chose the latter course. We cite those cases in order to clarify so far as possible the present position with regard to the defence of duress as it applies in cases of murder. As we shall mention later in this judgment, there are observations made, albeit obiter, by some of their Lordships on the question of attempted murder. The argument advanced by Mr Farrer QC on behalf of the appellant is in essence as follows. Throughout the history of the common law the defence of duress has been available in respect of all crimes with the exception of murder and some forms of treason. There was a time when robbery was also excluded, but that idea seems to have been shortlived. Thus Hale’s History of the Pleas of the Crown (1736) p 51 states A the principle as follows: » ° ‘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 facts; for he ought rather to die himself, than kill an innocent.’ Thirty years later Blackstone said (4 Bl Com (1st edn, 1769) 30): ‘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4 All England Law Reports [1991] 2 AIlER 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.” In 1833 the criminal law commissioners, it seems, exempted only murder and treason from the list of crimes to which duress could provide a defence (see 1st report, 26 Parliamentary Papers (1834) p 105). In 1879 the royal commission appointed to consider the law relating to indictable offences, of which Sir James Fitzjames Stephen himself was a member, prepared a draft criminal code purporting to express ‘what we think is the existing law and what at all events we suggest ought to be the law’ (see C 2345). Section 23 provided: ‘Compulsion by threats of immediate death or grievous bodily harm .. shall be an excuse for the commission of any offence other than high treason . murder, piracy, offences deemed to be piracy, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm, and arson Four years later, in 1883, Sir James Fitzjames Stephen published his History of the Criminal Law of England, from which it is clear that, at least so far as he himself was concerned, the contents of s 23 were what the commission considered ought to be the law rather than what they considered to be the existing law. Dealing with the concept of compulsion by a husband over his wife, which has a close affinity ro the question of duress with which we are at present concerned, Stephen says (vol 2, p 105): ‘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 seems to apply to misdemeanours generally.” Stephen (p 107) quotes the passage from Hale to which we have already made reference, and comments as follows: ‘Whatever may be thought of the reasoning of Hale, I think that the principle which he lays down may be defended on grounds of expediency.’ We have already drawn attention to the close parallel which can be drawn between the defence of duress and that of coercion of a wife by her husband. By s 47 of the Criminal Justice Act 1925 it was provided as follows: ‘Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.’ In Northern Ireland it was not until 20 years later that a similar alteration in the law was made by virtue of the Criminal Justice Act (Northern Ireland) 1945.cA Rv Gots (Lord Lane CJ) 5 ‘Thus this enactment, the object of which was apparently to bring wives, so to a speak, into line with other defendants, did not exclude attempted murder from the ambit of the defence. The draftsmen of these provisions, it is implied, must be taken to have adopted what he knew or believed to be the common law position, namely that the exclusion was confined to murder and treason. That, submits Mr Farrer, is a further indication that attempted murder was not subject to the same exclusion at common law. 5 The appellant's contention, in short, is that over very many years attempted murder was a recognised offence, and yet nowhere, apart from the royal commission's report in 1879, to which’ different consideration apply, is it suggested that attempted murder should be excluded from the defence of duress. Icis, he suggests, no part of the duty of the court at this late stage to embark upon a sudden restriction of the ambit of the defence. It would be anomalous to exclude attempted murder unless there were also excluded conspiracy to murder, incitement to murder and such offences as arson with intent to endanger life. He submits that the true distinction between murder and other cognate offences is that murder has many features which distinguish it from other offences, however grave, for example the mandatory sentence, the defence of provocation and that d Of diminished responsibility. The fact that it is to that extent sui generis is, it is submitted, a proper basis for the distinction. If it be correct that the common law recognised that there was, so to speak, a line to be drawn under murder whether by a principal in the first or second degree, so that apart from treason that was the only crime to which duress would not be an available defence, then it seems to us that we would be bound to accept @ that as the law, whether we think that is a desirable conclusion or not. In these circumstances the fact that there is no binding decision on the point does not serve to weaken a rule of the common law which has stood the test of time (see Foakes v Beer (1884) 9 App Cas 605, [1881-5] All ER Rep 106). It is convenient at this point to refer to observations which have been made obiter on this aspect of duress. Lowry LCJ, giving judgment in the hearing of the appeal in R v Lynch [1975] NI 35 at 45 prior to its consideration by the House of Lords, said: “The conventional view is that duress is not available as a defence on a charge of murder. This doctrine has sometimes been attributed to the principle that, whatever one may say about other offences, a man must be prepared to sacrifice his own life rather than take the life of another, but morally and logically this approach is open to two criticisms: in regard to the pressure exerted and in regard to the criminal act to be committed. Duress may include a threat to the family of the person threatened, and this introduces a new and different moral factor; secondly, murder may be A committed by a person who intends not to kill but merely to inflict serious bodily harm, and yet, according to the conventional view, if his act causes death, the crime is murder and the defence of duress is not available to him. A more practical explanation of the conventional view is that the sanctity of human life caused the defence of duress to be removed in the case of murder, even if it were available in the case of other crimes, some of which might in certain circumstances be regarded as even more reprehensible. This outlook is consistent with a system of law which has prescribed a fixed penalty for murder, both before and after the abolition of capital punishment for murder, regardless of the degree of guilt and even the presence or absence of an actual intention to kill, and which at the same time has not fixed the6 All England Law Reports [1991] 2 AILER penalty for attempted murder (and, incidentally, has left available the defence of duress), although the actual intention to kill is an essential element of the latter crime.” In R v Howe [1987] 1 AI ER 777 at 780, [1978] AC 417 at 432 in the speech of Lord Hailsham LC appears this passage: ... it is pointed out that, at least in theory, a defendant accused of this crime under s 18 of the Offences against the Person Act 1861, but acquitted on the grounds of duress, will still be liable to a charge of murder if the victim dies within the traditional period of one year and a day. I am not, perhaps, persuaded of this last point as much as I should. It is not simply an anomaly based on the defence of duress. It is a product of the peculiar mens rea allowed on a charge of murder which is not confined to an intent to kill. 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.’ Finally, on this aspect of the case, Lord Griffiths in R v Howe [1987] 1 All ER 771 at 790, [1987] AC 417 at 445 said: “As I can find no fair and certain basis on 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 Lynch v DPP for Northern Ireland [1975] 1 All ER 913, [1975] AC 653 and declare the law to be that duress is not available as a defence to a charge of murder or to attempted murder. I add attempted murder because it is to be remembered that the prosecution have to prove an even more evil intent to convict of attempted murder than in actual murder. Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to prove an intent to cause really serious injury.’ It should perhaps be observed that no argument, it seems, was addressed to the court upon the question of attempted murder either in the Court of Appeal in Northern Ireland or before the House of Lords. The rules of the common law as enunciated by the early commentators were expressed at a time when the concept of attempt as a separate form of crime had not yet emerged. Stephen in his History says (p 222): “The following is the history of the manner in which the law relating to attempts to commit crimes arrived at the present state. The first general rule upon the subject with which I am acquainted was that in cases of attempts to murder the will was to be taken for the deed when it was accompanied by overt acts clearly indicating the intention of the party. Coke, in his exposition of the Statute of Treasons (25 Edw. 3, st. 5, c. 2), refers to this principle, regarding apparently the provision as to compassing and imagining the king’s death as an illustration of it, and he refers to instances which occurred some time before the statute in which offenders who had clearly shown their intention to kill were punished as for murder, although their object was not carried out.’ The footnote to that page provides two interesting examples. Stephen continues (p 223):CA R v Gotts (Lord Lane CJ) 7 “This rule, however, appears to have been considered too severe and to have fallen into disuse, no general principle at all taking its place. The wide discretion which was then, and is now, allowed to the courts in regard of punishment would obviate many difficulties which the want of such a principle would rais As pointed out in Russell on Crime (12th edn, 1964) vol 1, p 175, it was not until the late eighteenth or early nineteenth century, so it seems, that the idea of attempt at common law and by statute assumed, broadly speaking, the shape in which we now see it. The Hard Labour Act 1822 made any attempt to commit a felony an offence punishable by imprisonment with hard labour. Section 15 of the Offences against the Person Act 1861 made attempts to commit murder punishable by a maximum of penal servitude for life. This being so, it cannot be said that the views of the early commentators establish or demonstrate a rule of the common law that the defence of duress will excuse attempted murder. Had attempted murder been perceived as a distinct and separate offence, it too would have been likely to have been the subject of a similar exclusion from the defence of duress. Professor Kenny in his Outlines of Criminal Law (13th edn, 1929) p 74 state ‘Duress per minas is a very rare defence; so rare that Sir James Stephen, in his long forensic experience never saw a case in which it was raised. Consequently the law respecting it remains to this day both meagre and vague. It is, however, clear that threats of the immediate infliction of death, or even of grievous bodily harm, will excuse some crimes that have been committed under the influence of such threats. It is impossible to say with precision for what crimes the defence will be allowed to avail. It certainly will not excuse murder.’ (Kenny's emphasis.) Professor Kenny then goes on to consider treason and also the conduct required to excuse a crime on the ground of duress. In these circumstances we are not constrained by a common law rule or by authority from considering whether the defence of duress does or does not extend to the offence of attempted murder. Equally, it is not surprising that some courts and parliamentary draftsmen have assumed that the common law drew a distinction between the attempt and the full offence which historically speaking may not have been justified. What was the rationale behind the common law exclusion of murder itself from the defence? Once again Stephen provides the answer in his History (ch 18, p 107): ‘Criminal law is itself a system of compulsion on the widest scale. It is a collection of threats of injury to life, liberty, and property if people do commit crimes. Are such threats to be withdrawn as soon as they are encountered by opposing threats? The law says to a man intending to commit murder, If you do it | will hang you, Is the law to withdraw its threat if some one else says, If you do not do it I will shoot you? Surely it is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary. It is, of course, a misfortune fora man that he should be placed between two fires, but it should be a much greater misfortune for society at large if criminals could confer impunity upon their agents by threatening them with death or violence if they refused to execute their commands. If impunity could be so secured a wide door would be opened to collusion, and encouragement would be given to associations of malefactors, secret or otherwise. No doubt the moral guilt of8 All England Law Reports [1991] 2 AILER a person who commits a crime under compulsion is less than that of a person who commits it freely, but any effect which is thought proper may be given to this circumstance by a proportional mitigation of the offender's punishment.’ Similar views were expressed by this court in R v Howe [1986] 1 All ER 833 at 839, [1986] QB 626 at 641, in a passage quoted by Lord Griffiths in his speech in the House of Lords (see [1987] 1 All ER 771 at 789, [1987] AC 417 at 444), namely that it would have been a highly dangerous relaxation in the law to allow a person who has deliberately killed, maybe a number of innocent people, to escape conviction and punishment altogether because of a fear that his own life or those of his family might be in danger if he did not. Particularly so when the defence of duress is so easy to raise and may be so difficult for the prosecution to disprove beyond reasonable doubt, the facts of necessity being as a rule known only to the defendant himself. It seems to us that, if those considerations are well founded, the fact that the attempt failed to kill should not make any difference. One can imagine a situation where a man under duress fires a shotgun in order to kill two men standing together. He kills one and maims the other. It would seem strange if he were to be convicted as to one victim and acquitted altogether in relation to the other when the death of the one victim and the maiming of the other were caused by the very same act committed with the very same intent. We note the suggestion that if attempt is excluded the same should apply to conspiracy and other kindred offences. We consider there is a legitimate distinction to be drawn. Conspiracy, incitement and so on are, generally speaking, a stage further away from the completed offence than is the attempt. Wherever the line is drawn it would be possible to suggest anomalies. It is a further consideration, not without importance perhaps, that if duress does not provide a defence to attempted murder, the sentence is at large and the court, as the instant case demonstrates, can tailor the sentence to the degree of culpability which the evidence discloses. In our judgment the learned judge was correct in the conclusion that he reached and accordingly this appeal against conviction is dismissed. Appeal dismissed. The court refused leave to appeal to the House of Lords but certified, under s 33(2) of the Criminal Appeal Act 1968, that the following point of law of general public importance was involved in the decision: is the defence of duress available to a person charged with attempted murder? NP Metcalfe Esq Barrister.