Duress and Inchoate Murder
![handle is hein.journals/kingsclj2 and id is 133 raw text is: DURESS AND INCHOATE MURDER
In Gotts [1991] 2 W.L.R. 878, the defendant was a sixteen year old
who attempted to stab his mother to death. His defence was that
his father had threatened to shoot him if he did not kill his
mother. He appealed against the trial judge's decision that the
defence of duress was unavailable on a charge of attempted
murder. The Court of Appeal was constrained by Howe [1987]
A.C. 417, in which the House of Lords denied the defence to both
the principal and accessory to murder (applying Abbott [1977]
A.C. 755 and overruling Lynch [1975] A.C. 653). In dismissing the
appeal, Lord Lane C.J., delivering the judgment of the Court of
Appeal, held that the Howe rule, as it has become known,
extended to a charge of attempted murder.
Much of the judgment in Gotts concentrates on the historical
development of the defence of duress: throughout the history of
the common law, the defence excused all crimes with the exception
of treason and murder itself. It was argued that as the writings of
commentators such as Blackstone, Stephen and Hale recognise
only these two offences where duress is not available, by implication
the defence is available in attempted murder. Lord Lane rejected
this logical argument based on historical analysis because the crime
of attempt assumed its present shape as a separate offence only
after these early commentators had enunciated the rules of the
common law. Hence, their views were not conclusive on the scope
of the defence of duress.
Unfettered by precedent, Lord Lane then approached the issue
as a matter of principle, focusing upon the Howe rule itself. Since
numerous rationales have been proposed for this rule, one might
have expected in Gotts a discussion of their relative merits, and an
examination of which, if any, applied with equal force in relation
to attempted murder. Unfortunately, Lord Lane discussed only
two of the possible rationales: deterrence and the fear of plea
fabrication.
In relation to deterrence, Lord Lane cited Sir James Fitzjames
Stephen's History Of The Criminal Law Of England, where it is
said in relation to killing: [slurely it is at the moment when
temptation to crime is strongest that the law should speak most
clearly and emphatically to the contrary. This argument is open to
the criticism that it is entirely unrealistic. It is well established that
only threats of immediate serious injury or death are, sufficient for](ViewImageLocal?handle=hein.journals/kingsclj2&div=11&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Duress and Inchoate Murder
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most