• In the case of Gotts 1992 2 AC 412, it was held that duress is no defence to attempted murder.

Facts of the Case

  • D with the intent of killing, stabbed his mother causing serious injuries.
  • D alleged that his father instructed him to kill her under the threat of being killed himself if D failed to carry out the father’s wishes.
  • D was then convicted for attempted murder.

Issues in Gotts 1992 2 AC 412

  • Did the issue of the threat create a defence of duress for D?
  • Can duress be a defence to attempted murder?

Held by House of Lords

  • Appeal dismissed.

Lord Browne-Wilkinson

  • Here, the sanctity of human life was discussed with it being of the upmost importance to the House of Lords.
  • No logic lies in allowing duress for attempted murder but not murder.
  • “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. Pg.442

Lord Lowry (Dissenting)

  • “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.”
  • “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 I 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.” Pg. 441

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