1992 PLP 1524 (SCMR)

Your Lordships will recall how Lord Lane CJ completed his preliminary review in which he referred to the first report of the Criminal Law Commissioners in 1833 (26 Parliamentary Papers (1834) p. 105) (which exempted only murder and treason from the defence of duress), the report of the royal commission appointed to consider the law relating to indictable offences (C 2345 (1879)). of which Sir James Fitzjames Stephen was a member, and Stephen's History of the Criminal Law of England (1883) and then commented on the common law position, and later the statutory position, with regard to the closely related subject of coercion of a wife by her husband, on which the appellant relied, and still relies, as an illustration by close analogy 'that, despite the logical and moral problem, the common law (and now Parliament as well) draws a line between murder and attempted murder so far as the defences of duress and coercion are concerned. My Lords, I draw attention to what Lord Lane CJ said ([1991] 2 All ER 1 at 5, [1991] 1 QB 660 at 664):‑‑ `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).' In my respectful view, that statement accurately defines the problem m this case. 4~'`'; There being no direct authority on duress as a defence to a charge of attempted murder, Lord Lane CJ then cited a trio of observations, which were obiter, from the majority judgment in the Court of Appeal in Lynch's case [1975] NI 35 at 45 and from the speeches of Lord Hailsham LC and Lord Griffiths in R v. Howe [1987] I All ER 771 at 780, 790, [1987] AC 417 at 432 445, which my noble and learned friend Lord Jauncey has already mention, and to which I shall presently return. These obiter dicta may be supplement in favour of the Crown by a reference to the dissenting judgment of Bray CJ (who held that duress was a defence to a charge of second degree murder) in R v. Brown and Morely [1968] SASR 467 at 499:‑‑ `I can only repeat that in my view the trend of the latter cases, general reasoning and the express authority of the Privy Council in Sephakela's case ([1954] HCTLR 60) prevent the acceptence of the simple proposition that no type of duress can ever afford a defence to any type of complicity in murder. I repeat also that as at present advised I do not think duress could constitute a defence to one who actually kills or attempts to kill the victim.' On the other hand, in R v. Hudson, R v. Taylor [1971] 2 All ER 244 at 246, [1971] 2 QB 202 at 206, where duress was‑held capable of providing a defence to a charge of perjury, Lord Parker CJ delivering judgment said:‑‑ `We have been referred to a large number of authorities and to the views of writers of text books Desptie the concern expressed in 2 Stephen's History of the Criminal Law in England (1883, p. 107) that it would be "

a much greater misfortune for society at large if criminals could confer [immunity] upon their agents by threatening them with death or violence if they refused to execute their commands

" it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) I draw attention to the words `in all offences.' The logic of what Lord Griffiths said in R v. Howe [1987] 1 All ER 771 at 790, [1987] AC 417 at 445 cannot be refuted, but at this point 1 must digress to take note of some observations made both by him and by the other members of the Appellate Committee. Lord Hailsham LC said ([1987] 1 All ER 771 at 778, [1987] AC 417 at 429‑430):‑‑ 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 Lymch's case. It may well be that law was to a certain extent unclear and to some extent gave rise to anomaly. But these anomalies I believe to be due to a number of factors extraneous to the present appeal and to the intrinsic nature of duress. The first is the mandatory nature of the sentence in murder. The second resides in the fact that murder being a "result" crime, only being complete if the victim dies within the traditional period of a year and a day and that, in consequence, a different crime may be charged according to whether or not the victim actually succumbs during the prescribed period. The third lies in the fact (fully discussed amongst many other authorities in Hyam v DPP [1974] 2 All ER 41, [1975] AC 55) that, as matters stand, the mens rea in murder not simply consists in an intention to kill, but may include an intent to commit grievous bodily harm. It has always been possible for Parliament to clear up this branch of the law (or indeed to defines more closely the nature and extent of the availability of duress as a defence). But Parliament has, conspicuously, and perhaps deliberately, declined to do so. In the meantime, I must say that the attempt made in Lynch's case to clear up this situation by judicial legislation has proved to be an excessive and perhaps improvident use of the undoubted power of the Courts to create new law by creating precedents in individual cases. This brings me back to the question of principle. I begin by affirming that, while there can never be a direct correspondence between law and morality, an attempt to divorce the two entirely is and has always proved to doomed to failure, and in the present case, the overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility.' I invite attention to his mention of anomalies and the cause of their existence and also to his description, of murder as a `result' crime. Then there is the passage which is reproduced in the Court of Appeal's judgment ([1987] 1 All ER 771 at 780, [1987] AC 417 at 432):‑‑ `

it is pointed out that, at least in theory, a defendant accused of this crime under section 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.' It does appear to me that the author of the concluding words of this passage, read in their context, is taking the defence of duress to be available on a charge of attempted murder, despite the contrast which he draws between the possible absence of an intent to kill in murder and its essential presence in attempted murder. The reference to a `casus omissus' conveys to my mind the impression that attempted murder has not become established by the common law as one of the exceptions to the general availability of the defence of duress, and that impression is strengthened by the use of the word `reconsideration'. Of course, the use of that word also implies the possibility of concluding that the defence is not available in a case of attempted murder. Lord Bridge of Harwich said ([1987] 1 All ER 771 at 783, [1987] AC 417 at 436):‑‑ `My Lords, the defence of duress, as a general defence available at common law which is sufficient to negative the criminal liability of a defendant against whom every ingredient of an offence has otherwise been proved, is difficult to rationalise or explain by reference to any coherent principle of jurisprudence. The theory that the party acting under duress is so far deprived of volition as to lack the necessary criminal intent has been clearly shown to be fallacious: see Lynch v DPP for Northern Ireland [1975] 1 All ER 913 at 951‑952, [1975] AC 653 at 709‑711 per Lord Edmund‑Davies. No alternative theory seems to provide a wholly satisfactory foundation on which the defence can rest. The law, therefore, might have developed more logically had it adopted the view of Stephen, expressed in his History of the Criminal Law of England (1883) Vol. 2, pp. 107‑108, that duress should be a matter, not of defence, but of mitigation. If this course had been followed, it might sensibly have led to the further development that, in the case of murder, duress, like provocation, would have sufficed to reduce the offence from murder to manslaughter. But that is not the law and, though it is open to Parliament to decide that it ought to be, that course is not open to us. We have to accept the law as we find it and, given the lack of any clear underlying principle to which we can refer, we must not, I think, be wholly surprised if the solution to the problem posed by the first certified question arising in these appeals fails to remove all the anomalies which some may discern in this field of the law.' I draw attention to the words which I have emphasised above. And Lord Bridge also said ([1987] 1 All ER 771 at 784, [1987] AC 417 at 437‑438):‑‑ `Not only is‑ it for Parliament to decide whether the proposed reform of the law is socially appropriate, but it is also by legislation alone, as opposed to judicial development, that the scope of the defence of duress can be defined with the degree of precision which, if it is to be available in murder at all, must surely be of critical importance.' I concede that one must beware of relying on an observation out of context. Lord Brandon of Oakbrook also referred to illogicality and the need for legislation rather than judicial decision. His speech was quite short ([19871 1 All ER 771 at 784, [19871 AC 417 at 438):‑‑ `My Lords, 1 have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mackay. I agree with it, and for the reasons which he gives I would dismiss the appeal. 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. First, it seems to me that, so far as the defence of duress is concerned, no valid distinction can be drawn between the commission of murder by one who is a principal in the first degree and one who is a principal in the second degree. Secondly, I am satisfied that the common law of England has developed over several centuries in such a way as to produce the illogical, and as I think unjust, situation to which I have referred. Thirdly, I am convinced that, if there is to be any alteration in the law on such an important and controversial subject, that alteration should be made by legislation and not by judicial decision.' The words I have emphasised are scarcely consistent with the view that attempted murder is an exception to the general rule about duress. In view of its importance 1 shall quote a slightly longer extract from the speech of Lord Griffiths than that which is reproduced in the Court of Appeal's judgment ([1987] 1 All ER 771 at 790, [1987] AC 417 at 445): `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] 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 cannot be right to allow the defence to one who may be more intent on taking a life than the murderer. This leaves, of course, the anomaly that duress is available for the offence of wounding with intent but not to murder if the victim dies subsequently. But this flows from the special regard that the law has for human life; it may not be logical but it is real and has to be accepted.' I note again the reference to anomaly and to the `special regard that the law has for human life'. Lord Mackay of Clashfern, having referred to the situation created by the decision in Lynch's case continued ([1987] 1 All ER 771 at 798‑799, [1987] AC 417 at 457): `In my opinion, it would not be right to allow this state of affairs to continue. I recognise that this decision leaves certain apparent anomalies in the law but I regard these as consequences of the fact that murder is a result related crime with a mandatory penalty. Consequently, no distinction is made in penalty between the various levels of culpability. Differentiation in treatment once sentence has been pronounced depends on action by the Crown advised by the executive government, although that may be affected by a recommendation which the Court is empowered to make. Where a person has taken a minor part in a wounding with intent and is dealt with on that basis he may receive a very short sentence. If sufficiently soon after that conviction the victim dies, on the same facts with the addition of the victim's death caused by the wounding, he may be sentenced to life imprisonment. This is simply one illustration of the fact that very different results may follow from a set of facts together with the death of a victim from what would follow the same facts if the victim lived.' (My emphasis). While this passage gives no indication of the author's view of the question which is now before your Lordships, it acknowledges the existence of anomalies and notes features consequent on murder being a result related crime. To these observations I would just add one extract from the judgment of Lord Lane CJ in the Court of Appeal in R v. Howe [1986] 1 All ER 833 at 836‑837, [1986] QB 626 at 637‑638:‑‑ `The judges discover the law either from words of the relevant statutes or, so far as common law offences are concerned, from earlier decisions of other Courts which are binding upon them or have persuasive authority. They may often be assisted by eminent writers of commentaries, or by academic writers, in so far as they have distilled the essence of judicial decisions. Judges should however be careful to disregard those parts of their writings which suggest what the law ought‑ to be but is not. Just as the trial judge must decide what the present law is, so must this Court decide whether the trial judge came to the right conclusion. It is no more our task than his to decide what the law ought to be, although we may express our views obiter for what they are worth, if we feel the situation so demands.' To come back to the present appeal, Lord Lane Q completed his historical survey with some important comments and quotations as follows ([1991] 2 All ER 1 at 6‑7, [1991] 1 QB 660 at (fib‑667):‑‑ `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): "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 raise." As pointed out in Russell on Crime (12th edn, 1964), Vol.l, 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 stated: "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 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 excuse4a 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.' The basic proposition for the appellate is that at common law duress has always been a defence for those charged with every crime except murder, most forms of treason and possibly (for a short time) robbery and that to add attempted murder to the exceptions would not be justified. The trial judge, whose words I have cited earlier, may seem to have adopted the first part of this proposition but not the second. The answer by the Crown, I suggest, has to be that attempted murder is at common law an exception to the general rule and was an exception at the time when the appellant tried to kill his mother. The first mention of attempted murder as an exception is in the draft criminal code of 1879 (see C 2345) and the Crown must concede that this code, with its numerous exceptions to the duress defence, represents an aspiration of its authors and not a restatement of the law as it was understood to be. The statutory codes in Commonwealth countries which mention attempted murder and sometimes other serious offences as exceptions may no doubt be largely derived from the 1879 code. They do not purport to reflect the common law, any more than do the codes found in the United States of America. I think it is worth mentioning that all the codes seem to be drawn up on the basis that duress is available as a defence to every charge which is not expressly excepted. The early writers acknowledge duress as a defence and mention murder and treason as exceptions. These are the most heinous crimes, the one against humanity, the other against the state, and the fixed penalty was death. Certain crimes connected with setting fire to docks and HM ships were also capital offences under the Dockyards &c Protection Act, 1772 until its repeal in 1971, which is later .in time than the abolition of the death penalty for murder. No doubt those crimes could in some cases have been treated as treason, but no argument advanced has sought to reveal a connection between such offences and the solution of the question posed to your Lordships. The early writers do not mention attempted murder and therefore one's first impression is that that crime is not an exception from the duress defence. But it has been said that attempts to commit a crime were of no great account in our jurisprudence until the late eighteenth and early nineteenth centuries, with the predictable consequence that even the serious offence of attempted murder was not discussed by such authorities as Hale and Blackstone. Indeed, like other attempts, attempted murder was only a misdemeanour at common law. It is, in my view, doubtful whether this explanation of the neglect of Hale and Balckstone to mention attempted murder lends any support to the ulterior proposition that that crime is an exception (like murder and treason) to the general rule. But, as my noble and learned friend Lord Jauncey has noted, Mr. Farrer submitted that the very foundation of the Crown's argument was unsound when one took into account the development in the Star Chamber of the law in relation to attempts the and adoption of that law by the common law Courts. He also submitted the cogent observation that it was inconceivable that Hale, with his experience as Chief Justice, did not perceive attempted murder as an offence. And, referring to East's Pleas of the Crown (1803), he invited your Lordships' attention to the statute 9 Ann c 21 (assaulting a Privy Councilor (1710)), whereby if any person shall unlawfully attempt to kill, or shall unlawfully assault, strike or wound any Privy Councillor in the execution of his office, in Council, or in any committee of Council, he shall on conviction be declared a felon, and suffer death without benefit of clergy. By 1833, when the Criminal Law Commissioners presented their first report (26 Parliamentary Papers (1834) P. 105), exempting only murder and treason from the duress defence, the Hard Labour Act, 1922, as Lord Lane C.J. pointed out, had given statutory recognition to attempts. I have no difficulty in accepting the inference or surmise of my noble and learned friend Lord Jauncey that an act amounting to attempted murder, before that offence became a statutory felony in 1861. punishable by penal servitude for life, may ofter, depending on the facts of the case, have been charged as wounding with intent or causing grievous harm. But the true conclusion from this may be that before 1801 the misdemeanour of attempted murder did not rank at all in the same category as the heinous offences of murder and treason, so that there was no question of withdrawing from its perpetrator the benefit of the defence of duress. Your Lordships will also have noted that that defence has never been said to be unavailable at common law in cases of serious assault. The foundation of the Crown's argument is that, accepting the sanctity of human life as the basis for denying the defence of duress in murder, both logic and morality demand that that defence must be withheld from one who tried (albeit unsuccessfully), and therefore intended, to kill, when one considers that in murder the defence is withheld not only from the deliberate killer but also from the killer who intended only to inflict very serious injury and from all principals of the second degree, whatever their mens rea. But the logic and, to some extent, also the morality of this proposition arc open to attack, as follows. (I) Treason, too, is an excluded offence and it does not invariably involve killing or attempting or conspiring to kill. It is the ultimate crime against the State (a man‑made, as distinct from a divinely ordained, offence). (2) The principle that a person ought to die himself rather than kill an innocent is attractive but does not touch the case in which the killer did not intend to cause death, nor does it touch a principal in the second degree either, if he merely intended the victim to suffer serious personal injury. (3) There is much authority to show that duress can be relevant which involves a threat not to the killer, but to others, in particular his wife and children; which fundamentally alters the moral problem: sec R v. Brown and Morley [1968] SASR 467 at 498 Per Bray, CJ., R v. Hurley and Murray [1967] VR 526, Abbott v. R [1976] 3 All ER 140 at 146, 148‑149, [1977] AC 755 at 767, 769 per Lord Salmon and per Lord Wilberforce and Lord Edmund‑Davies, R v. Howe [1987] 1 All ER 771 at 780, 796, [1987] AC 417 at 533, 453, per Lord Hailsham of LC and Lord Mackay, and also various statutory codes and the Law Commission's draft Criminal Code Bill of 1989 (Law Com No. 177), the combined effect of which is to show that threats to harm others can be a basis for the defence of duress. My Lords, I suggest that the only thing which can reconcile the anomalies that have been a prolific source of comment is the stark fact of death. Murder is a result‑related crime, as Lord Hailsham LC and Lord Mackay both observed in R v. Howe [1987] 1 All ER 771 at 778, 799, [1987] AC 417 at 430,

457. Thus, to exclude treason and murder relates the doctrine of duress to serious results (admittedly an unsuccessful attempt to subvert the Government can itself be treason), namely danger to the State or a crime committed with guilty intent and resulting in, but not necessarily aimed at, loss of life, and does not specially relate that doctrine to a scale of moral turpitude. It is founded on practical considerations and not on a moral value judgment: the recourse to moral values was found in Hale's explanation, which related only to murder (and certainly not to robbery) and which, even in relation to murder, did not serve to justify the law's attitude, since it did not cover the guilty causation of death while intending merely to injure. Blackstone's explanation that crimes created by the laws of society are in relation to duress distinguished from natural offences, so declared by the law of God, equally fails to satisfy, since treason is typically a crime created by the laws of society for its own protection and because the explanation does not contemplate a mere intent to injure. I sympathise with the proposition that attempted murder should be recognised as an exempted crime. But from the point of view of deterrence this idea holds no special attraction. 1f one makes the somewhat artificial assumption (without which the principle of deterrence has no meaning) that a potential offender will know when the defence of duress is not available, one then has to realise that, whatever the law may be about attempted murder one who sets out to kill under threat will be guilty of murder if he succeeds. Therefore the deterrent is in theory operative already. The moral position, too, is clouded, because Lynch's case [1975] 1 All ER 913; [1975] AC 653, in this respect alone affirming the majority opinion of the Court of Criminal Appeal, affirmed that the offender, even when acting under duress, intends to commit the crime (of murder, not attempted murder). But his guilty intent is of a special kind: `coactus voluit', as the Latin phrase has it. Thus the denial of the duress defence, based on moral principles, is not straightforward. It may not be just a case of the law saying: `Although you did not succeed, you intended to kill. Therefore you cannot rely on duress'. The law might equally well say: `As with other offenders who allege duress, your guilty intent was caused by threats. Therefore, since the intended victim did not die, you, like other offenders, can rely on those threats as a defence. If the victim had died in circumstances amounting to murder or if treason had been the crime, it would of course have been different.' This emphasises the point that murder is a result related crime. The choice is between the two views propounded by Lord Lane CJ:(1) if the common law recognised that murder and treason were the only excepted crimes, then we are bound to accept that. as the law, whether it seems a desirable conclusion or not. The fact that there is no binding decision on the point does not weaken a rule of the common law which has stood the test of time (see [1991] 2 All ER 1 at 5, [1991] 1 QB 660 at 664); or (2) 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 (see [1991] 2 All ER 1 at 7, [1991] 1 QB 660 at 667). I consider that the view to be preferred is that which is contained in the first of these propositions and that to adopt the second would result in an unjustified judicial change in the law. It is only with diffidence that I would express an opinion on the criminal law which conflicts with that of such highly respected authorities as Lord Lane, C.J. and Lord Griffiths, but on this occasion I feel obliged to do so. I proceed to give my reasons for this conclusion. Both Judges and text-writers have pointed out that the law on the subject is vague and uncertain. In R v. Brown and Morley [1968] SASR 467 at 479 the Court mentioned `the defence of duress, as to which there is little direct authority and much theoretical discussion' And, speaking of compulsion, whether by a husband over a wife, by threats of injury or by necessity, Stephen said in his History of the Criminal Law of England (1883) Vol. 2, p. 105: `Of the three forms of compulsion above mentioned, I may observe generally that hardly any branch of the law of England is more meagre or less satisfactory than the law on this subject.' Your Lordships have seen that Professor Kenny expressed himself to the same effect in his Outlines of Criminal Law (13th edn., 1929) p.

74. There have, moreover, been few cases in which the doctrine of duress has been directly in issue either with regard to the offences in relation to which it may provide a defence or as to the kind of threatening conduct which may constitute duress. There has, for all that, been considerable discussion and debate. In such an atmosphere it is easy for the discussion to focus on what the law ought to be rather than on what it is; and that is an unsatisfactory basis for the exercise of criminal jurisdiction. But, in my opinion, this vagueness ought not to encourage innovation which makes a departure from the received wisdom even if that wisdom is imperfect. This is particularly true if the innovation is retrospective in effect, to the prejudice of an accused person. Hale's philosophical explanation of withholding the duress defence is not a good starting point for putting attempted murder in the category of murder and treason or for saying that it is in that category already. The intention of the offender is evil, but when the attempt has failed the sentence is variable, although someone who kills through compassion or who kills intending only to injure receives a fixed sentence (until recently a capital sentence). That a man who did not mean to kill can be found guilty of murder and will receive a mandatory life sentence is arguably a blot on our legal system but that is the law and this fact sets murder apart. Such a result is consistent with the traditional view that one who causes death when committing a felony (I exclude manslaughter) is guilty of murder. In R v. Stephenson [1947] NI 110 the accused was charged with the murder of a woman on whom he performed an abortion but, on the verdict of the jury, was convicted of manslaughter. The principle on which Stephenson was charged, although outmoded, is further proof that murder is a result related crime. Stephen‑‑‑and many have agreed with him‑‑‑thought that duress should not be a defence to any crime, but this view does not justify taking the most obvious candidate for exclusion from that defence any more than all the other offences below murder and treason which are listed in the 1879 code (C 2345) and in relation to which your Lordships can safely say that the duress defence is available. Whatever one may say about the earlier days, attempted murder was a fully established and serious crime ink 1861 and has been ever Since. To withhold in respect of every crime the defence of duress, leaving it to the Court (or, in relation to fixed penalty crimes, the executive) to take, mitigating circumstances into account, seems logical. But to withhold that defence only from a selected list of serious crimes (some of which incur variable penalties) is questionable from a sentencing point of view, as indeed the sentence in the present case shows. The defence is withheld on the ground that the crime is so odious that it must not be palliated; and yet, if circumstances are allowed to mitigate the punishment, the principle on which the defence of duress is withheld has been defeated. The fact that the sentence for attempted murder is at large is, with respect to those who think otherwise, no justification for withholding the defence of duress. Quite the reverse, because it is the theoretical inexcusability of murder and treason which causes those crimes (the fixed penalty for which can be mitigated only by the executive) to be deprived of the duress defence. Except for the dictum of Lord Griffiths, the comments made in R v. Howe do not appear to help the Crown. Section 47 of the Criminal Justice Act, 1925 is by no means decisive and I acknowledge the validity of my noble and learned friend Lord Jauncey's comments. For one thing, the common law background is no clearer than that appertaining to duress and the case‑law is negligible. But the draftsman seems to have acted upon the received wisdom, conforming to what I suggest everyone must have thought was the law and thereby coinciding with the received view‑on duress. One cannot, of course, deny that attempted murder was a well‑recognised felony in 1925. So, whatever the rationale, the law appears to have been consistent, making no concession to human frailty or to a wife's submissiveness in regard to murder or treason, but conceding the defence of duress and the possibility of marital coercion in respect of all other offences. Having referred in the Court of Appeal's judgment to the wise observations of Lord Griffiths in R v. Howe on the undesirability of making available the defence of duress to any person who has deliberately killed, Lord Lane, C.J. said ([1991] 2 All ER 1 at 8, [1991] 1 OB 660 at 667):‑‑ `It seems‑to us that, if those considerations are well founded, the fact that the attempt failed to kill should not make any difference.' (My emphasis.) But in my submission everything except the turpitude of attempted murder points away from saying that that offence is already at common law outside the ambit of the duress defence. And I further suggest that actual wickedness is not shown to be a dominant factor in the calculation compared with the result. As I have said, your Lordships are concerned to say what the law is and not what it ought to be. So far from clearing the way for judges to declare that attempted murder is an excepted crime, the uncertainty and vagueness surrounding duress ought to induce caution before deciding to reject the received wisdom on the subject. What we can be clear about is that the common law regards duress as generally available but not available in cases of murder and treason, and the statutory codes treat duress as generally available except as expressly mentioned. Your Lordships will have noted what was said by members of this House when comparing the functions of Parliament and the judges in R v. Howe, and I would invite your Lordships' attention to two further statements on the subject. In Abbott v. R [1976] 3 All ER 140 at 147, [1977] AC 755 at 767 Lord Salmon said:‑‑ `Judges have no power to create new criminal offences, nor in their Lordships' opinion, for the reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine accepted for hundreds of years without question. If a policy change of such a fundamental nature were to be made it could, in their Lordships' view, be made only by Parliament. Whilst their Lordships strongly uphold the right and indeed the duty of the judges to adapt and develop the principles of the common law in an orderly fashion, they are equally opposed to any usurpation by the Courts of the functions of Parliament: And in R v. Howe [19871 1 All ER 771 at 793, [1987] AC 417 at 449‑450 Lord Mackay, speaking of what I may perhaps call judicial legislation, said:‑‑ `In approaching this matter, I look for guidance to Lord Reid's approach to the question of this House making a change in the prevailing view of the law in Myers v. DPP [1964] 2 All ER 881 at 885-886 [1965] AC 1001 at 1021‑1022,. where he said: "I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases; but there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation: and if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty

"' Lord Reid was speaking in a different context (about hearsay evidence), but I suggest that the principles espoused in both of the passages which I have cited are appropriate to the present case. It could be said that what your Lordships have recently done with regard to marital rape (see R v. R‑‑‑(rape: marital exemption) [19911 4 All ER 481, [1991] 3 WLR 767) was in a modern context to `adapt and develop the principles of the common law', in the words of Lord Salmon. But, with regard to attempted murder and duress, it does not seem to me that any question of adaptation or development can arise. In these circumstances I respectfully cannot subscribe to the view that it would not be harmful to declare that attempted murder is an excepted crime and thereby possibly deprive the appellant of a defence which was available at the time of his offence. By parity of reasoning I do not think it is satisfactory to say, `Let us declare this crime to be excepted, and Parliament can undo our work if it sees fit', if there is a substantial risk (and for my part I think it is much more) that ‑we shall be anticipating Parliament instead of allowing Parliament to make a policy decision after reasoned debate. . My Lords, what I have just said reminds me that this question was presented by the Crown to your Lordships as a question of policy and that R v. Howe was cited as an example of a policy decision. But in fact no example could be more misleading. The appellants in that case pressed your Lordships to accept the lead of the minority in Abbott v. R and to make a policy decision by coming into line with what is now acknowledged to be the erroneous decision of this House in Lynch's case and your Lordships refused to do so both because the common law said that duress was not available in relation to murder and because the policy of the law was served by adhering to that position. What Lord Lane CJ said in the Court of Appeal is the complete answer to an appeal to policy ([1991] 2 All ER 1 at 5, [19911 1 QB 660 at 664); if the common law recognised that murder and treason were the only excepted' crimes, then we are bound to accept that as the law, whether it seems a desirable conclusion or not. If the common law has had a policy towards duress heretofore, it seems to have been to go by the result and not primarily by the intent and, if a change of policy is needed with regard to criminal liability, it must be made prospectively by Parliament and not retrospectively by a Court. I am not influenced in favour of the appellant by the supposed illogicality of distinguishing between attempted murder on the one hand and conspiracy and incitement to murder on the other and I agree on this point with the view of Lord Lane CJ: short of murder itself, attempted murder is a special crime. But I am not swayed in favour of the Crown by the various examples of the anomalies which are said to result from holding that the duress defence applies to attempted murder. As Lord Lane CJ said, it would be possible to suggest anomalies wherever the line is drawn (see [1991] 2 All ER 1 at 8, [1991] 1 QB 660 at 667). The real logic would be to grant or withhold the duress defence universally. Attempted murder, however heinous we consider it, was a misdemeanour. Until 1861 someone who shot and missed could suffer no more than two years' imprisonment and 1 submit that, when attempted murder became a felony, that crime, like many other serious felonies, continued to have available the defence of duress. My Lords, having considered all the arguments on either side, I am of the opinion that your Lordships are constrained by a common law rule (though not by judicial authority) from holding that the defence of duress does not apply to attempted murder. Accordingly, I would allow the appeal, quash the conviction and set aside the probation order but, in the special circumstances of this case, I would not propose that a new trial be ordered. LORD BROWNE‑WILKINSON.‑‑‑My Lords, the speeches of Lord Jauncey of Tullichettle and Lord Lowry both demonstrate that at the present time it is uncertain whether or not the law permits duress to be pleaded as a defence to a charge of attempted murder. In this case your Lordships have to clarify the position one way or the other. The law does not allow duress as a defence to murder itself on the policy grounds that it is not right to allow a man to take the life of another in order to save his own. As the speech of Lord Jauncey demonstrates, that policy reason applies equally to attempted murder. I can see no logical or policy reason for differentiating between the case '‑of the successful and the unsuccessful would‑be murderer. I therefore agree that the appeal should be dismissed but express the hope that Parliament will consider the whole question of duress as a defence to all crimes with particular reference to the question whether duress is not better; regarded as a mitigating factor than as a defence. Appeal dismissed.