Valderrama-Vega (1985) Crim LR 220

D claimed that he had imported cocaine because of death threats made by a Mafia-type organisation. But he also needed the money because he was heavily in debt to his bank. Furthermore, he had been threatened with having his homosexuality disclosed. His conviction was quashed by the Court of Appeal: the jury had been directed he only had a defence if the death threats were the sole reason for acting.

ACTIVITY

In the light of the House of Lords’ decision in Ireland, Burstow (1998) AC 147 to extend the scope of the phrase ‘bodily harm’ in the context of s 20 and s 47 OAPA 1861 to include psychiatric harm, discuss whether the Court of Appeal’s decision in Baker and Wilkins is justifiable.

ACTIVITY

Applying the law

1. D is accosted in his car by armed robbers who direct him to drive them away, or they will shoot randomly into a group of schoolchildren at a bus stop. Should D have a defence of duress if charged with aiding and abetting armed robbery?

2. This question was posed by Professor Sir John Smith in his commentary on Wright in the Criminal Law Review: could a fan of Manchester United be reasonably expected to resist a threat to kill the team’s star player if he did not participate in a robbery?

JUDGMENT

‘It should be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.’

The Hasan case will be examined in more detail below.

Opportunities to escape and police protection

D will be expected to take advantage of any reasonable opportunity that he has to escape from the duressor and/or contact the police. If he fails to take it, the defence may fail. This was illustrated in Gill (1963) 2 All ER 688. D claimed that he had been threatened with violence if he did not steal a lorry. The Court of Criminal Appeal expressed doubts whether the defence was open, as there was a period of time in which he could have raised the alarm and wrecked the whole enterprise. In Pommell (1995) 2 Cr App R 607, Kennedy LJ accepted that ‘in some cases a delay, especially if unexplained, may be such as to make it clear that any duress must have ceased to operate, in which case the judge would be entitled to conclude that … the defence was not open’.

CASE EXAMPLE

Pommell (1995) 2 Cr App R 607

Police found D at 8 am lying in bed with a loaded gun in his hand. He claimed that, during the night, a man called Erroll had come to see him, intent on shooting some people who had killed Erroll’s friend. D had persuaded Erroll to give him the gun, which he took upstairs. This was between 12.30 am and 1.30 am. D claimed that he had intended to hand the gun over to the police the next day. D was convicted of possessing a prohibited weapon, contrary to the Firearms Act 1968, after the trial judge refused to allow the defence of duress to go to the jury. This was on the basis that, even if D had been forced to take the gun, he should have gone immediately to the police. The Court of Appeal allowed the appeal on the basis that this was too restrictive and ordered a retrial.

‘Where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence.’

This principle has been confirmed, and extended, in a number of subsequent cases. It is now firmly established that D does not necessarily have to have joined a criminal organisation (as in Lynch (1975) or Sharp). Voluntarily associating with persons with a propensity for violence (typically, by buying unlawful drugs from suppliers) may well be enough to deny the defence.

Ali (1995) Crim LR 303 and Baker and Ward (1999) EWCA Crim 913; (1999) 2 Cr App R 335 both concerned drug users who pleaded duress to robbery, having become indebted to their supplier and having then been threatened with violence if they did not find the money. In each case the Court of Appeal confirmed the defence would be denied in situations where D voluntarily placed himself in a position where the threat of violence was likely.

In Heath (1999) EWCA Crim 1526; (2000) Crim LR 109, D was a drug user who had become heavily indebted to a man with a reputation for violence and who had threatened D with violence if he did not deliver a consignment of 98 kilos of cannabis from Lincolnshire to Bristol. D was caught and charged with being in possession of cannabis. He pleaded duress, but the defence was denied and he was convicted. The Court of Appeal rejected his appeal. D had voluntarily associated himself with the drug world, knowing that in that world, debts are collected via intimidation and violence.

Harmer (2001) EWCA Crim 2930; (2002) Crim LR 401, was factually very similar to Heath. D had been caught at Dover docks trying to smuggle cocaine into the United Kingdom hidden inside a box of washing-up powder. At his trial D pleaded duress on the basis that his supplier had forced him to do it or suffer violence. D admitted that he had knowingly involved himself with criminals (he was a drug addict and had to have a supplier to get drugs) and knew that his supplier might use or threaten violence. However, he said that he had not appreciated that his supplier would demand that he get involved in crime. The defence was denied, and D was convicted; the Court of Appeal upheld his conviction, following Heath. Voluntary exposure to unlawful violence was enough to exclude the defence.

Professor Sir John Smith was critical of the decision in Harmer. He wrote in the commentary to the case in the Criminal Law Review that ‘the joiner may know that he may be subjected to compulsion, but compulsion to pay one’s debts is one thing, compulsion to commit crime is quite another.’ Given the judicial uncertainty and academic criticism of the law, it was perhaps inevitable that the House of Lords would eventually be asked to clarify the position regarding the availability of duress when D voluntarily associates himself with a criminal gang or organisation. In Hasan (2005) UKHL 22; (2005) 2 AC 467, the Court of Appeal had quashed D’s conviction of aggravated burglary but certified a question for the consideration of the House of Lords, seeking to establish whether the defence of duress is excluded when, as a result of the accused’s voluntary association with others

1. he foresaw (or possibly should have foreseen) the risk of being then and there subjected to any compulsion by threats of violence; or

3. only if the offences foreseen (or which should have been foreseen) were of the same type (or possibly the same type and gravity) as that ultimately committed.

The Lords reinstated D’s conviction after taking the view that option (1) above cor-rectly stated the law. By a 4:1 majority, the Lords confirmed that it was sufficient if D should have foreseen the risk of being subjected to ‘any compulsion’.

CASE EXAMPLE

Hasan (2005) UKHL 22; (2005) 2 AC 467

Z, a driver and minder for Y, a prostitute, had been threatened by Y’s boyfriend, X, who had a reputation as a violent gangster and drug dealer, to carry out a burglary. Z attempted to burgle a house, armed with a gun, but was scared off by the householder. Z was charged with aggravated burglary and pleaded duress. The trial judge directed the jury that the defence was not available if Z had voluntarily placed himself in a position in which threats of violence were likely. Z was convicted, and although the Court of Appeal quashed his conviction, it was reinstated by the House of Lords.

Lord Bingham stated:

JUDGMENT

‘The defence of duress is excluded when as a result of the accused’s voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.’

Only Baroness Hale departed from the majority: she would have preferred to take option (2). None of the five judges chose option (3). The case of Baker and Ward (1999) EWCA Crim 913, in which the Court of Appeal had decided that D had to foresee that he would be compelled to commit offences of the type with which he was charged (ie option (3)), was therefore overruled. However, the judgments in the other Court of Appeal cases, including Heath and Harmer, have now been confirmed.

Hasan was applied in Ali (2008) EWCA Crim 716, where D was charged with robbery. He had taken a Golf Turbo car on a test drive but then forced the car salesman out of the car at knifepoint before driving off. At his trial, D claimed that he had been threatened with violence by a man called Hussein if he did not commit the robbery. However, his duress defence was rejected on the basis that he had been friends with Hussein, who had a violent reputation, for many years. In the words of the trial judge, D had chosen to join ‘very bad company’. Dismissing D’s appeal, Dyson LJ stated:

JUDGMENT

‘The core question is whether [D] voluntarily put himself in the position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence. As a matter of fact, threats of violence will almost always be made by persons engaged in a criminal activity; but in our judgment it is the risk of being subjected to compulsion by threats of violence that must be foreseen or foreseeable that is relevant, rather than the nature of the activity in which the threatener is engaged.’

JUDGMENT

‘Common sense must recognise that there are certain kinds of criminal enterprises the joining of which, in the absence of any knowledge of propensity to violence on the part of one member, would not lead another to suspect that a decision to think better of the whole affair might lead him into serious trouble. The logic which appears to underlie the law of duress would suggest that if trouble did unexpectedly materialise and if it put the defendant into a dilemma in which a reasonable man might have chosen to act as he did, the concession to human frailty should not be denied to him.’

CASE EXAMPLE

Cairns (1999) EWCA Crim 468; (1999) 2 Cr App R 137

V, who was inebriated, stepped out in front of D’s car, forcing him to stop. V climbed onto the bonnet and spread-eagled himself on it. D drove off with V on the bonnet. A group of V’s friends ran after the car, shouting and gesticulating (they claimed later that they just wanted to stop V, not do any harm to D). D had to brake in order to drive over a speed bump, V fell off in front of the car, and was run over, suffering serious injury. D was convicted of inflicting grievous bodily harm (GBH) with intent contrary to s 18 OAPA 1861, after the trial judge ruled that the defence of duress of circumstances was only available when ‘actually necessary to avoid the evil in question’. However, the Court of Appeal quashed the conviction. It was not necessary that the threat (or, in the judge’s words, ‘evil in question’) was, in fact, real.

The principle that it is D’s belief in the existence of a threat, as opposed to its exist-ence in fact, was confirmed in Safiand others (2003).

CASE EXAMPLE

Safiand others (2003) EWCA Crim 1809

The appellants in this case had hijacked a plane in Afghanistan and ordered it to be flown to the United Kingdom, in order to escape the perceived threat of death or injury at the hands of the Taliban. (The facts of the case occurred in February 2000, ie, before the overthrow of the Taliban regime by American-led military forces in 2002.) At their trial for hijacking, false imprisonment (relating to the appellants’ failure to release the other passengers after the plane’s arrival in the United Kingdom until three days had elapsed) and other charges, the appellants pleaded duress of circumstances. This was disputed by the Crown and the jury at the first trial failed to agree. At the retrial, the trial judge told the jury to examine whether the appellants were in imminent peril (as opposed to whether they reasonably believed that they were in imminent peril). The Court of Appeal allowed the appeal and quashed the convictions. Longmore LJ suggested that, if public policy demanded the existence of an actual threat, as opposed to a reasonably perceived one, it was for Parliament to change the law.

A recent case demonstrates that, if D’s belief is genuine — but unreasonable — then it will not support a plea of duress.

CASE EXAMPLE

S (2012) EWCA Crim 389; (2012) 1 Cr App R 31

S was charged with abducting her own daughter, L, contrary to s 1 of the Child Abduction Act 1984. S was divorced from L’s father, but both parents shared custody. Under the terms of the divorce, neither parent was allowed to take L out of the country without the prior permission of the other parent or the High Court. In fact, S took her daughter to Spain without permission. S was tracked down in Gibraltar and ordered to return L to the United Kingdom, which she did. At her trial, S pleaded duress (of circumstances), based on her belief that there was an imminent risk of serious physical harm to L from sexual abuse from L’s father. This was rejected, and the Court of Appeal upheld the guilty verdict. Sir John Thomas said that ‘there could be no reasonable belief that a threat was imminent nor could it be said that a person was acting reasonably and proportionately by removing the child from the jurisdiction in order to avoid the threat of serious injury’.

The second objective aspect is that D’s belief must have given him ‘good cause’ to fear death or serious injury. Thus, even if D genuinely (and reasonably) believed that death or serious injury would be done to him but, objectively (ie in the opinion of the jury), death or serious injury was unlikely, then the defence fails.

The second question

This question is objective, although certain characteristics of D will be attributed to the reasonable person. In Graham (1982), Lord Lane CJ said:

JUDGMENT

‘As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness … The law [of provocation] requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situation.’

Age, as a young person may not be so robust as a mature one.

Pregnancy, where there was an added fear for the unborn child.

Serious physical disability, as that might inhibit self-protection.

Recognised mental illness or psychiatric condition, such as post-traumatic stress disorder leading to learnt helplessness. Psychiatric evidence might be admissible to show that D was suffering from such condition, provided persons generally suffering them might be more susceptible to pressure and threats. It was not admissible simply to show that in a doctor’s opinion D, not suffering from such illness or condition, was especially timid, suggestible or vulnerable to pressure and threats.

Finally, D’s gender might possibly be relevant, although the court thought that many women might consider that they had as much moral courage to resist pressure as men. The Court of Appeal dismissed D’s appeal holding that a low IQ — falling short of mental impairment or mental defectiveness — could not be said to be a characteristic that made those who had it less courageous and less able to withstand threats and pressure. The decision in Bowen to allow evidence of post-traumatic stress disorder leading to learnt helplessness as a characteristic is interesting, and not particularly easy to reconcile with the earlier decisions of Hegarty and Horne. A jury faced with the question, ‘Would the ordinary person, displaying the firmness reasonably to be expected of a person of the defendant’s age and sex suffering from learnt helplessness have yielded to the threat?’ is almost certain to answer in the affirmative, except if the threat was very trivial indeed.

But D still faces being branded as, in law, a ‘murderer’, and a morally innocent man should not have to rely on an administrative decision for his freedom.

To recognise the defence would involve overruling Dudley and Stephens. According to Lord Griffiths, the decision was based on ‘the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another’s life’.

The basis of the decision in Dudley and Stephens is in fact far from clear. It would be possible to recognise a defence of necessity to murder without overruling Dudley and Stephens.

Lord Griffiths thought the defence should not be available because it was ‘so easy to raise and may be difficult for the prosecution to disprove’.

This argument applies to most defences! It also ignores the fact that in Howe and Bannister itself, the jury had rejected the defence and convicted. Indeed, Lord Hailsham said that ‘juries have been commendably robust’ in rejecting the defence on other cases.

Lord Bridge thought that it was for Parliament to decide the limits of the defence.

Why should this be? Duress is a common law defence, so the judges should decide its scope.

CASE EXAMPLE

Howe and Bannister (1987) AC 417

D, aged 19, and E, aged 20, together with two other men, one aged 19, and the other, Murray, aged 35, participated in the torture, assault, and then strangling of two young male victims at a remote spot on the Derbyshire moors. At their trial on two counts of murder and one of conspiracy to murder, they pleaded duress, arguing that they feared for their lives if they did not do as Murray directed. He was not only much older than the others but had appeared in court several times before and had convictions for violence. D and E were convicted of all charges, and their appeals failed in the Court of Appeal and House of Lords.

Howe and Banister was followed in Wilson (2007) EWCA Crim 1251; (2007) 2 Cr. App. R. 31, where the Court of Appeal confirmed that duress was never a defence to murder, even though D was a 13-year-old boy. D and his father E murdered E’s neighbour, V, using various weapons. At trial, D pleaded duress, on the basis that E had threatened him with violence if he did not participate. The defence was rejected. Lord Phillips CJ stated:

JUDGMENT

‘There may be grounds for criticising a principle of law that does not afford a 13-year-old boy any defence to a charge of murder on the ground that he was complying with his father’s instructions, which he was too frightened to refuse to disobey. But our criminal law holds that a 13-year-old boy is responsible for his actions and the rule that duress provides no defence to a charge of murder applies however susceptible D may be to the duress.’

First, duress would, in principle, have been available (Cairns (1999)).

Second, the Graham/Bowen test would have applied. The jury would have been asked to decide (1) whether D may have been impelled to act as he did because, as a result of what he reasonably believed E had said or done, he had good cause to fear that if he did not so act E would kill or seriously injure him; (2) whether a sober 13-year-old boy of reasonable firmness might have taken part in the attack.

Duress and attempted murder

In Howe and Bannister, Lord Griffiths said, obiter, that the defence of duress was not available to charges of attempted murder. This was confirmed in Gotts (1991) 2 All ER 1, where Lord Jauncey said that he could ‘see no justification in logic, morality or law in affording to an attempted murderer the defence which is withheld from a murderer’.

CASE EXAMPLE

Gotts (1991) 2 All ER 1

D, aged 16, had been threatened with death by his father unless he tracked his mother down to a refuge and killed her. D did as directed but, although seriously injured, his mother survived. The trial judge withdrew the defence and D was convicted. The Court of Appeal and House of Lords upheld his conviction.

ACTIVITY

Self-test question

D1, with intent to do serious harm, attacks and kills V. He appears to be guilty of mur-der and would have no defence of duress to murder (Howe and Bannister (1987)) and would face life imprisonment. D2, with intent to do serious harm, attacks V and causes serious injury but not death. He could plead duress to a charge under s 18 OAPA 1861 (Cairns (1999)) and, if successful, would receive an acquittal. (D2 could not be convicted of attempted murder because this requires proof of intent to kill.) D1 and D2 have the same mens rea, but one is labelled a murderer and faces a long prison term; the other escapes with no punishment at all. Is this justifiable? Bear in mind that the difference between the two cases is simply whether V survives, which is subject to a number of variables (V’s age and state of health, the quality of medical treatment available, etc).

Reform

You will have noted that in several of the above cases the courts have tended to describe duress of circumstances and necessity as the same thing. You are referred in particular to Lord Woolf’s comments in Conway (1988) and more recently in Shayler (2001). In the latter case D, a former member of the British Security Service (MI5), was charged (and ultimately convicted of) disclosing confidential documents in breach of the Official Secrets Act 1989. Unusually, his defence (whether it is properly regarded as duress of circumstances or necessity is perhaps a moot point) was considered both by the Court of Appeal and by the House of Lords before the actual trial. Lord Woolf CJ, giving judgment in the Court of Appeal, gave a very strong indication that duress of circumstances and necessity were interchangeable. He stated:

JUDGMENT

‘The distinction between duress of circumstances and necessity has, correctly, been by i and large ignored or blurred by the courts. Apart from some of the medical cases like Re F (1990) 2 AC 1, the law has tended to treat duress of circumstances and necessity as one and the same.’

However, in this book they will be regarded as separate defences. There are two reasons for this.