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Hasan (Respondent) (On Appeal from the Court of Appeal (Criminal Division))
(formerly Regina v. Z (2003) (On Appeal from the Court of Appeal (Criminal Division))
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. Hasan (Respondent) (On Appeal from the Court of Appeal (Criminal Division)) (formerly Regina v. Z (2003) (On Appeal from the Court of Appeal (Criminal Division)) ON THURSDAY 17 MARCH 2005 The Appellate Committee comprised: Lord Bingham of Cornhill Lord Steyn Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Brown of Eaton-under-Heywood HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERegina v. Hasan (Respondent) (On Appeal from the Court of Appeal (Criminal Division))(formerly Regina v. Z (2003) (On Appeal from the Court of Appeal (Criminal Division))[2005] UKHL 22LORD BINGHAM OF CORNHILLMy Lords, 1. This appeal by the Crown against the decision of the Criminal Division of the Court of Appeal (Rix LJ, Crane J and Judge Maddison: [2003] EWCA Crim 191, [2003] 1 WLR 1489, sub nom R v Z) raises two questions. The first concerns the meaning of "confession" for the purposes of section 76(1) of the Police and Criminal Evidence Act 1984. The second concerns the defence of duress. Anonymity 2. At trial in the Central Criminal Court, the name of the defendant Aytach Hasan ("the defendant") and the names of the main participants in the proceedings were given in open court. But two of those participants (Frank Sullivan and Claire Taeger) were then awaiting trial and the trial judge, His Honour Judge Paget QC, properly made an order under section 4(2) of the Contempt of Court Act 1981 prohibiting the publication of their names or any information concerning them or their forthcoming trial. This trial has now taken place and the order has been discharged. In the Court of Appeal the names of the defendant, then the appellant, and the main participants were anonymised and the case was reported as R v Z. An order was made under section 11 of the 1981 Act prohibiting any publication, save in a complete report of the judgment or in a legal journal, of the fact that the defendant had spoken to a police officer about Sullivan and Taeger and of that officer's report of the conversation. Having invited submissions from the parties, I am of the clear opinion that the Court of Appeal had no power under section 11 to restrain publication of evidence given in open court and referred to openly in the judge's summing up. In this opinion the names of the main participants will accordingly be used. The facts 3. In brief summary, the relevant facts are these. The defendant had worked as a driver and minder for Claire Taeger, who ran an escort agency and was involved in prostitution. In about July or August 1999, according to the defendant, Sullivan became Taeger's boyfriend and also her minder in connection with her prostitution business. He had, the defendant said, the reputation of being a violent man and a drug dealer. 4. The prosecution alleged that on 29 August 1999 a man living in Croydon telephoned Taeger's agency asking for the services of a prostitute. The defendant went to the address with a prostitute. But the client had changed his mind and claimed that he had not made a telephone call. The defendant insisted that a £50 cancellation fee be paid, and forced his way into the house, producing a knife and demanding payment. The client went upstairs and opened a safe, whereupon the defendant took some £4000 from it and ran from the house. This incident founded the first count of aggravated burglary in the indictment later preferred against the defendant. But his account of the incident was quite different. He said that he had been given the £50 fee without any threat and had taken nothing from the safe. But he said that after this incident he had reported the existence of the safe and its contents to Taeger in the presence of Sullivan. 5. According to the defendant, his work for Taeger fell off with the arrival of Sullivan, who urged Taeger to get rid of him. There was a row in October or November 1999 and he stopped working for Taeger. But she lived in a flat which the defendant let to her, and she owed him outstanding rent. As security for this, he said, Sullivan made a red Rover car available to him, which he parked outside this flat. The next day it was gone, and he assumed that Taeger had a key and had taken it. 6. According to the defendant's evidence at trial, he saw Sullivan shortly before Christmas 1999. Sullivan said he was short of cash as he was doing a big cocaine deal. He wanted the key to the Rover, which the defendant said he would look for. Just after Christmas 1999, the defendant said, Sullivan visited him again. He again spoke of a cocaine deal, giving the defendant to believe he had killed two dealers. He also spoke of killing another man by injecting him with a heroin overdose. He offered to show the defendant the body of a man, Bryan Davies, in the boot of the Rover. 7. The second count of aggravated burglary in the indictment against the defendant related to an incident on 23 January 2000, involving the same house and the same victim as the earlier incident. The defendant admitted at trial that he had forced his way into the house on this occasion, armed with a knife, and had attempted to steal the contents of the safe, but claimed that he had acted under duress exerted by Sullivan, who had fortified his reputation for violence by talking of three murders he had recently committed. On the day in question, the defendant claimed, he had been ambushed outside his home by Sullivan and an unknown black man whom he described as a "lunatic yardie". Sullivan demanded that the defendant get the money from the safe mentioned on the earlier occasion, and told the defendant that the black man would go with him to see that this was done. Sullivan said that, if the defendant did not do it, he and his family would be harmed. The defendant claimed that he had no chance to escape and go to the police. The black man drove the defendant to the house and gave him a knife, saying that he himself had a gun. The defendant then broke into the house and tried unsuccessfully to open and then to remove the safe. The black man was in the vicinity throughout, and drove him away when the attempt failed. 8. Bryan Davies had died of a heroin overdose on 16 December 1999. On 14 April 2000 his body was discovered in the boot of the Rover, and the police believed that he had been injected with a fatal dose. Sullivan and Taeger were arrested and when interviewed said that the defendant had had the Rover in December 1999. They were awaiting trial at the time of the defendant's trial. 9. On 5 June 2000 the defendant was arrested and interviewed in relation to the two burglaries. He denied any involvement in either. The victims of the second burglary then identified him on an identification parade. He was charged and produced a note which began "I rely on duress". He gave no detailed particulars. 10. On 26 June 2000 the defendant was interviewed, in the presence of his solicitor, by police investigating the death of Bryan Davies. He made a witness statement, describing his relationship with Sullivan and Taeger and explaining how the Rover had come to be outside his flat, where Taeger lived, before Christmas 1999. He then had an off-the-record conversation with the police, which my noble and learned friend Lord Steyn has described in paras 45 and 46 of his opinion. 11. By a defence statement dated 4 August 2000 the defendant gave further details of his defence of duress, claiming that he had been coerced into committing the second burglary by Sullivan. 12. The defendant's trial on two counts of aggravated burglary began on 30 January 2001 and ended on 9 February. The jury acquitted him on the first count but convicted him on the second. He was sentenced to 9 years' imprisonment. 13. Lord Steyn has recounted the course of the trial and summarised the trial judge's ruling on the confession issue under section 76 of PACE, and has quoted the judgment of the Court of Appeal on this question: see paras 47-49 and 60 of his opinion. I am in complete agreement with his reasoning, and I share his conclusion. I shall therefore confine this opinion to the issue of duress. 14. On that issue the judge put four questions to the jury:
The first of these questions repeated in substance a question the judge had already framed for the consideration of the jury. In his earlier direction he had explained the second question somewhat more fully:
He had earlier directed the jury on the third question as follows:
Then the judge had turned to the fourth question:
15. On his appeal to the Court of Appeal the defendant criticised the judge's directions on the third and fourth questions. With regard to the third question Rix LJ, giving the judgment of the court, said (in para 49 of the judgment):
Having considered a number of authorities, the Court of Appeal also concluded (paras 72-77) that there was a misdirection in the judge's formulation of question 4
16. Having upheld the defendant's ground of appeal on the confession issue, and found two misdirections on the duress issue, the court considered the defendant's conviction on the second count to be unsafe and quashed it. In this appeal to the House, the Crown seek to establish that the judge's directions on the third and fourth questions involved no misdirection, and they suggest that his direction on the first question was favourable to the defendant. It is necessary to consider the law on duress in a little detail. Duress 17. The common sense starting point of the common law is that adults of sound mind are ordinarily to be held responsible for the crimes which they commit. To this general principle there has, since the 14th century, been a recognised but limited exception in favour of those who commit crimes because they are forced or compelled to do so against their will by the threats of another. Such persons are said, in the language of the criminal law, to act as they do because they are subject to duress. 18. Where duress is established, it does not ordinarily operate to negative any legal ingredient of the crime which the defendant has committed. Nor is it now regarded as justifying the conduct of the defendant, as has in the past been suggested: Attorney-General v Whelan [1934] IR 518, 526; Glanville Williams, Criminal Law, The General Part (2nd ed, 1961), p 755. Duress is now properly to be regarded as a defence which, if established, excuses what would otherwise be criminal conduct: Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653, 671, 680, 710-711; Hibbert v The Queen (1995) 99 CCC (3d) 193, paras 21, 38, 47, per Lamer CJC. 19. Duress affords a defence which, if raised and not disproved, exonerates the defendant altogether. It does not, like the defence of provocation to a charge of murder, serve merely to reduce the seriousness of the crime which the defendant has committed. And the victim of a crime committed under duress is not, like a person against whom a defendant uses force to defend himself, a person who has threatened the defendant or been perceived by the defendant as doing so. The victim of a crime committed under duress may be assumed to be morally innocent, having shown no hostility or aggression towards the defendant. The only criminal defences which have any close affinity with duress are necessity, where the force or compulsion is exerted not by human threats but by extraneous circumstances, and, perhaps, marital coercion under section 47 of the Criminal Justice Act 1925. 20. Where the evidence in the proceedings is sufficient to raise an issue of duress, the burden is on the prosecution to establish to the criminal standard that the defendant did not commit the crime with which he is charged under duress: R v Lynch, above, p 668. In its Report "Legislating the Criminal Code. Offences against the Person and General Principles" (1993, Law Com. No 218, Cm 2370, paras 33-34), the Law Commission recommended that a legal burden of proof, on the balance of probabilities, be placed on a defendant to establish a defence of duress. It was not suggested in argument that this was a change which should be made, and there must be real doubt whether it is a change which the House in its judicial capacity could properly make even if persuaded of the merits of doing so. Imposition of a reverse legal burden on the defendant would in any event require very careful consideration. But it must be accepted, as the Law Commission pointed out in para 33 of this Report, that the defence of duress is peculiarly difficult for the prosecution to investigate and disprove beyond reasonable doubt. As Professor Sir John Smith QC observed in his commentary on R v Cole [1994] Crim LR 582, 584, with reference to the Law Commission proposal,
The prosecution's difficulty is of course the greater when, as is all too often the case, little detail of the alleged compulsion is vouchsafed by the defence until the trial is under way. 21. Having regard to these features of duress, I find it unsurprising that the law in this and other jurisdictions should have been developed so as to confine the defence of duress within narrowly defined limits. Most of these are not in issue in this appeal, but it seems to me important that the issues the House is asked to resolve should be approached with understanding of how the defence has developed, and to that end I shall briefly identify the most important limitations: (1) Duress does not afford a defence to charges of murder (R v Howe [1987] AC 417), attempted murder (R v Gotts [1992] 2 AC 412) and, perhaps, some forms of treason (Smith & Hogan, Criminal Law, 10th ed., 2002, p 254). The Law Commission has in the past (eg. in "Criminal Law. Report on Defences of General Application" (Law Com No 83, Cm 556, 1977, paras 2.44-2.46)) recommended that the defence should be available as a defence to all offences, including murder, and the logic of this argument is irresistible. But their recommendation has not been adopted, no doubt because it is felt that in the case of the gravest crimes no threat to the defendant, however extreme, should excuse commission of the crime. It is noteworthy that under some other criminal codes the defence is not available to a much wider range of offences: see, for example, section 20(1) of the Tasmanian Criminal Code, section 40(2) of the Criminal Code Act of the Northern Territory of Australia, section 31(4) of the Criminal Code Act Compilation Act 1913 of Western Australia, section 17 of the Canadian Criminal Code and section 24 of the Crimes Act 1961 of New Zealand. (2) To found a plea of duress the threat relied on must be to cause death or serious injury. In Alexander MacGrowther's Case (1746) Fost. 13, 14, 168 ER 8, Lee CJ held:
But the Criminal Law Commissioners in their Seventh Report of 1843 (p 31, article 6) understood the defence to apply where there was a just and well-grounded fear of death or grievous bodily harm, and it is now accepted that threats of death or serious injury will suffice: R v Lynch, above, p 679; R v Abdul-Hussain (Court of Appeal (Criminal Division), 17 December 1998, unreported). (3) The threat must be directed against the defendant or his immediate family or someone close to him: Smith & Hogan, above, p 258. In the light of recent Court of Appeal decisions such as R v Conway [1989] QB 290 and R v Wright [2000] Crim LR 510, the current (April 2003) specimen direction of the Judicial Studies Board suggests that the threat must be directed, if not to the defendant or a member of his immediate family, to a person for whose safety the defendant would reasonably regard himself as responsible. The correctness of such a direction was not, and on the facts could not be, in issue on this appeal, but it appears to me, if strictly applied, to be consistent with the rationale of the duress exception. (4) The relevant tests pertaining to duress have been largely stated objectively, with reference to the reasonableness of the defendant's perceptions and conduct and not, as is usual in many other areas of the criminal law, with primary reference to his subjective perceptions. It is necessary to return to this aspect, but in passing one may note the general observation of Lord Morris of Borth-y-Gest in R v Lynch, above at p 670:
(5) The defence of duress is available only where the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied upon. (6) The defendant may excuse his criminal conduct on grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take. It is necessary to return to this aspect also, but this is an important limitation of the duress defence and in recent years it has, as I shall suggest, been unduly weakened. (7) The defendant may not rely on duress to which he has voluntarily laid himself open. The scope of this limitation raises the most significant issue on this part of this appeal, and I must return to it. 22. For many years it was possible to regard the defence of duress as something of an antiquarian curiosity, with little practical application. Sir James Stephen, with his immense experience, never knew or heard of the defence being advanced, save in the case of married women, and could find only two reported cases: A History of the Criminal Law of England (1883), vol II, p 106. Edwards, drawing attention to the absence of satisfactory modern authority, inferred that the defence must be very rare: "Compulsion, Coercion and Criminal Responsibility" (1951) 14 MLR 297. Professor Hart described duress as a defence of which little is heard: Punishment and Responsibility (1960), p 16. This has changed. As Dennis correctly observed in "Duress, Murder and Criminal Responsibility" (1980) 96 LQR 208,
This is borne out by the steady flow of cases reaching the appellate courts over the past 30 years or so, and by the daily experience of prosecutors. As already acknowledged, the House is not invited in this appeal to recast the law on duress. It can only address, piecemeal, the issues which fall for decision. That duress is now regularly relied on as a complete defence to serious criminal charges does not alter the essential task which the House must undertake, but does give it additional practical importance. I must acknowledge that the features of duress to which I have referred in paras 18 to 20 above incline me, where policy choices are to be made, towards tightening rather than relaxing the conditions to be met before duress may be successfully relied on. In doing so, I bear in mind in particular two observations of Lord Simon of Glaisdale in R v Lynch above (dissenting on the main ruling, which was reversed in R v Howe, above):
In Perka v The Queen [1984] 2 SCR 232, 250, Dickson J held that
I agree. I also agree with the observation of the Supreme Court of Canada in R v Ruzic (2001) 153 CCC (3d) 1, para 59, although in that case the presence and immediacy requirements in section 17 of the Canadian Criminal Code were struck down as unconstitutional:
If it appears at trial that a defendant acted in response to a degree of coercion but in circumstances where the strict requirements of duress were not satisfied, it is always open to the judge to adjust his sentence to reflect his assessment of the defendant's true culpability. This is what the trial judge did in R v Hudson and Taylor, below, where he ordered the conditional discharge of the defendants. The judge's direction to the jury on questions 1 and 2 |
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