Judgments - 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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    23.  The appellant did not challenge the judge's direction to the jury on questions 1 and 2. Save in one respect those directions substantially followed the formulation propounded by the Court of Appeal (Criminal Division) (Lord Lane CJ, Taylor and McCullough JJ) in R v Graham [1982] 1 WLR 294, 300, approved by the House of Lords in R v Howe above, at pp 436, 438, 446, 458-459. It is evident that the judge, very properly, based himself on the JSB's specimen direction as promulgated in August 2000. That specimen direction included the words, adopted by the judge, "he genuinely believed". But the words used in R v Graham and approved in R v Howe were "he reasonably believed". It is of course essential that the defendant should genuinely, ie. actually, believe in the efficacy of the threat by which he claims to have been compelled. But there is no warrant for relaxing the requirement that the belief must be reasonable as well as genuine. There can of course be no complaint of this departure from authority, which was favourable to the defendant.

The judge's direction to the jury on question 3

    24.  As recorded in para 15 above, the Court of Appeal held that the judge had misdirected the jury on question 3 because, it was held, there was no suggestion that the defendant could have taken evasive action. This may, or may not, on the facts, be so, and this suggested misdirection does not feature in the question on duress certified for the opinion of the House. It is true, as the Court of Appeal recognised in its judgment, that there may be an area of overlap between questions 2 and 3: a reasonable person of a defendant's age and background would not have been forced and driven to act as the defendant did if there was any evasive action reasonably open to him to take in order to avoid committing the crime. But the third question put by the judge, and regularly put in such cases, whether or not correctly put on the facts of this case, in my opinion focuses attention on a cardinal feature of the defence of duress, and I would wish to warn against any general notion that question 3 "collapses" into or is subsumed under questions 1 and 2.

    25.  In the draft Criminal Code prepared by the Criminal Law Commissioners in 1879, section 23, a defence was provided in the case of "Compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence". The requirement of immediacy is reflected in the criminal codes of several other jurisdictions. Section 67(1) of the Queensland Criminal Code refers to "immediate death or grievous bodily harm threatened by someone else able to carry out the threat". Section 20(1) of the Tasmanian Code refers to "compulsion by threats of immediate death or grievous bodily harm, from a person actually present at the commission of the offence". Section 31(4) of the Western Australian Code, section 17 of the Canadian Code and section 24(1) of the New Zealand Code use very much the same language. In Scotland where, as in England and Wales, the defence of coercion has recently enjoyed something of a vogue after a long period of dormancy, the law is clear that a threat, to found the defence, must be of immediate and not future death or serious injury: Hume's Commentaries, vol i, p 53; Thomson v HM Advocate 1983 JC 69, 72-73, 75, 80; Cochrane v H M Advocate 2001 SCCR 655, 656, 659-661. In Perka v The Queen [1984] 2 SCR 232, 251, 259, a decision directed to the analogous defence of necessity, Dickson J identified the necessary conditions as including "urgent situations of clear and imminent peril" in which "compliance with the law [would be] demonstrably impossible". In Hibbert v The Queen (1995) 99 CCC (3d) 193, para 49, Lamer CJC quoted with approval the reference by Horder ("Autonomy, Provocation and Duress" [1992] Crim LR 706, 709) to taking "the necessary evasive action".

    26.  The recent English authorities have tended to lay stress on the requirement that a defendant should not have been able, without reasonably fearing execution of the threat, to avoid compliance. Thus Lord Morris of Borth-y-Gest in R v Lynch, above, at p 670, emphasised that duress

    "must never be allowed to be the easy answer of those who can devise no other explanation of their conduct nor of those who readily could have avoided the dominance of threats nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant."

Lord Simon of Glaisdale gave as his first example of a situation in which a defence of duress should be available (p 687):

    "A person, honestly and reasonably believing that a loaded pistol is at his back which will in all probability be used if he disobeys ….."

In the view of Lord Edmund-Davies (p 708) there had been

    "for some years an unquestionable tendency towards progressive latitude in relation to the plea of duress."

    27.  In making that observation Lord Edmund-Davies did not directly criticise the reasoning of the Court of Appeal in its then recent judgment in R v Hudson and Taylor [1971] 2 QB 202, but that was described by Professor Glanville Williams as "an indulgent decision" (Textbook of Criminal Law, 2nd ed, 1983, p 636), and it has in my opinion had the unfortunate effect of weakening the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress. The appellants were two teenage girls who had committed perjury at an earlier trial by failing to identify the defendant. When prosecuted for perjury they set up a plea of duress, on the basis that they had been warned by a group, including a man with a reputation for violence, that if they identified the defendant in court the group would get the girls and cut them up. They resolved to tell lies, and were strengthened in their resolve when they arrived at court and saw the author of the threat in the public gallery. The trial judge ruled that the threats were not sufficiently present and immediate to support the defence of duress but was held by the Court of Appeal to have erred, since although the threats could not be executed in the courtroom they could be carried out in the streets of Salford that same night. It was argued for the Crown that the appellants should have neutralised the threat by seeking police protection, but this argument was criticised as failing to distinguish between cases in which the police would be able to provide effective protection and those when they would not. The Court of Appeal placed reliance on the decision of the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965. That case, however, involved a defendant who sought at trial to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions,

    "nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence ….."

The appeal was allowed because evidence relied on by the appellant to show that he had had a reasonable apprehension of instant death was wrongly excluded. It is hard to read that decision as authority for the Court of Appeal's conclusion. I can understand that the Court of Appeal in R v Hudson and Taylor had sympathy with the predicament of the young appellants but I cannot, consistently with principle, accept that a witness testifying in the Crown Court at Manchester has no opportunity to avoid complying with a threat incapable of execution then or there. When considering necessity in R v Cole [1994] Crim LR 582, 583, Simon Brown LJ, giving the judgment of the court, held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offence charged, but in R v Abdul-Hussain, above, the Court of Appeal declined to follow these observations to the extent that they were inconsistent with R v Hudson and Taylor, by which the court regarded itself as bound.

    28.  The judge's direction on question 3 was modelled on the JSB specimen direction current at the time, and is not in my opinion open to criticism. It should however 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 judge's direction to the jury on question 4

    29.  The judge's direction to the jury on question 4 is quoted in para 14 above and, as recorded in para 15, the Court of Appeal ruled that this was a misdirection because the judge had not directed the jury to consider whether the defendant knew that he was likely to be subjected to threats to commit a crime of the type of which he was charged. It is this ruling which gives rise to the certified question on this part of the case, which is:

    "Whether the defence of duress is excluded when as a result of the accused's voluntary association with others:

    (i)  he foresaw (or possibly should have foreseen) the risk of being subjected to any compulsion by threats of violence, or

    (ii)  only when he foresaw (or should have foreseen) the risk of being subjected to compulsion to commit criminal offences, and, if the latter,

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

    The Crown contend for answer (i) in its objective form. The defendant commends the third answer, omitting the first parenthesis.

    30.  In their definition of duress the Criminal Law Commissioners of 1879 included a proviso:

    "Provided also, that he [the defendant] was not a party to any association or conspiracy the being party to which rendered him subject to such compulsion."

A qualification to very similar effect is to be found in the criminal codes of Queensland (section 67(3)(b) and (c)), Tasmania (section 20(1)), the Northern Territory of Australia (section 41(2)), Western Australia (section 31(4)), the Commonwealth of Australia (section 10.2(3)), the Australian Capital Territory (section 40(3)), Canada (section 17), New Zealand (section 24(1)) and no doubt others. But its implications were not for many years examined in the British courts.

    31.  The issue might have been raised in R v Lynch, above, where the appellant claimed to have been press-ganged by the IRA, but the argument in that case was largely directed to the question whether the defence of duress was open to a defendant charged as a secondary party to murder. It was in R v Fitzpatrick [1977] NI 20, another IRA case, that the Court of Criminal Appeal in Northern Ireland had occasion to consider the matter in depth. The ratio of the decision is found in the judgment of the court delivered by Lowry LCJ at p 33:

    "A person may become associated with a sinister group of men with criminal objectives and coercive methods of ensuring that their lawless enterprises are carried out and thereby voluntarily expose himself to illegal compulsion, whether or not the group is or becomes a proscribed organisation …..

    ….. if a person voluntarily exposes and submits himself, as the appellant did, to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid."

    32.  That statement was no doubt drafted with the peculiar character of the IRA in mind. R v Sharp [1987] QB 853 arose from criminal activity of a more routine kind committed by a gang of robbers. The trial judge's direction which was challenged on appeal is fully quoted in R v Shepherd (1987) 86 Cr App R 47, 51, and was to this effect:

    "….. but in my judgment the defence of duress is not available to an accused who voluntarily exposes and submits himself to illegal compulsion.

    It is not merely a matter of joining in a criminal enterprise; it is a matter of joining in a criminal enterprise of such a nature that the defendant appreciated the nature of the enterprise itself and the attitudes of those in charge of it, so that when he was in fact subjected to compulsion he could fairly be said by a jury to have voluntarily exposed himself and submitted himself to such compulsion."

The Court of Appeal (Lord Lane CJ, Farquharson and Gatehouse JJ) upheld that direction in R v Sharp, expressing the principle at p 861:

    "….. 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 of duress."

In R v Shepherd, above, the criminal activity was of a less serious kind: the question which the jury should have been (but were not) directed to consider (p 51) was "whether the appellant could be said to have taken the risk of P's violence simply by joining a shoplifting gang of which he [P] was a member".

    33.  R v Ali is summarised at [1995] Crim LR 303, but the ratio of the decision more clearly appears from the transcript of the judgment given by the Court of Appeal (Lord Taylor of Gosforth CJ, Alliott and Rix JJ) on 14 November 1994. The appellant claimed to have become involved in drug dealing and to have become indebted to his supplier, X, who (he said) had given him a gun and told him to obtain the money from a bank or building society the following day, failing which he would be killed. The appellant accordingly committed the robbery of which he was convicted. In directing the jury on the defence of duress advanced by the defendant the trial judge had said:

    "The final question is this: did he, in obtaining heroin from Mr X and supplying it to others for gain, after he knew of Mr X's reputation for violence, voluntarily put himself in a position where he knew that he was likely to be forced by Mr X to commit a crime?"

It was argued by the appellant that the judge should have said "forced by Mr X to commit armed robbery", but this was rejected, and the court held that by "a crime" the jury could only have understood the judge to be referring to a crime other than drug dealing. The principle stated by the court on p 7 of the transcript was this:

    "The crux of the matter, as it seems to us, is knowledge in the defendant of either a violent nature to the gang or the enterprise which he has joined, or a violent disposition in the person or persons involved with him in the criminal activity he voluntarily joined. In our judgment, if a defendant voluntarily participates in criminal offences with a man 'X', whom he knows to be of a violent disposition and likely to require him to perform other criminal acts, he cannot rely upon duress if 'X' does so."

(In this case, as in R v Cole, above, it would seem that the defence of duress should in any event have failed, for lack of immediacy, since the threat was not to be executed until the following day, and therefore the defendant had the opportunity to take evasive action).

    34.  In its Working Paper No 55 of 1974, the Law Commission in para 26 favoured

    "a limitation upon the defence [of duress] which would exclude its availability where the defendant had joined an association or conspiracy which was of such a character that he was aware that he might be compelled to participate in offences of the type with which he is charged."

This reference to "offences of the type with which he is charged" was, in substance, repeated in the Law Commission's "Report on Defences of General Application" (Law Com No 83) of 1977, paras 2.38 and 2.46(8), in clause 1(5) of the draft bill appended to that report, in clause 45(4) of the draft bill appended to the Law Commission's Report on "Codification of the Criminal Law" (Law Com No 143) of 1985, as explained in para 13.19 of the Report, and in clause 42(5) of the Law Commission's draft "Criminal Code Bill" (Law Com No 177) published in 1989. But there was no warrant for this gloss in any reported British authority until the Court of Appeal (Roch LJ, Richards J and Judge Colston QC) gave judgment in R v Baker and Ward [1999] 2 Cr App R 335. The facts were very similar to these in R v Ali, above, save that the appellants claimed that they had been specifically instructed to rob the particular store which they were convicted of robbing. The trial judge had directed the jury (p 341):

    "A person cannot rely on the defence of duress if he has voluntarily and with full knowledge of its nature joined a criminal group which he was aware might bring pressure on him of a violent kind or require him if necessary to commit offences to obtain money where he himself had defaulted to the criminal group in payment to the criminal group."

This was held to be a misdirection (p 344):

    "What a defendant has to be aware of is the risk that the group might try to coerce him into committing criminal offences of the type for which he is being tried by the use of violence or threats of violence."

At p 346 this ruling was repeated:

    "The purpose of the pressure has to be to coerce the accused into committing a criminal offence of the type for which he is being tried."

The appeals were accordingly allowed and the convictions quashed.

    35.  Counsel for the defendant in the present case contends (as the Court of Appeal accepted) that this ruling was correct and that the trial judge in the present case misdirected the jury because he did not insist on the need for the defendant to foresee pressure to commit the offence of robbery of which he was convicted.

    36.  In R v Heath (Court of Appeal: Kennedy LJ, Turner and Smedley JJ, 7 October 1999, [2000] Crim LR 109) the appellant again claimed that he had become indebted to a drug supplier, and claimed that he had been compelled by threats of physical violence to collect the consignment of drugs which gave rise to his conviction. His defence of duress failed at trial, rightly as the Court of Appeal held. In its judgment, Kennedy LJ said:

    "The appellant in evidence conceded that he had put himself in the position where he was likely to be subjected to threats. He was therefore, in our judgment, not entitled to rely on those same threats as duress to excuse him from liability for subsequent criminal conduct."

The court found it possible to distinguish R v Baker and Ward, observing:

    "It is the awareness of the risk of compulsion which matters. Prior awareness of what criminal activity those exercising compulsion may offer as a possible alternative to violence is irrelevant."

The facts in R v Harmer (Court of Appeal: May LJ, Goldring and Gross JJ, 12 December 2001, [2002] Crim LR 401) were very similar to those in R v Heath, which the court followed. It does not appear from the court's judgment given by Goldring J whether R v Baker and Ward was directly cited, but it would seem that counsel for the appellant did not rely on it. He argued that the appellant did not foresee that he might be required to commit crimes for the supplier. But the court did not accept this argument:

    "We cannot accept that where a man voluntarily exposes himself to unlawful violence, duress may run if he does not foresee that under the threat of such violence he may be required to commit crimes. There is no reason in principle why that should be so."

    37.  The principal issue between the Crown on one side and the appellant and the Court of Appeal on the other is whether R v Baker and Ward correctly stated the law. To resolve that issue one must remind oneself of the considerations outlined in paras 18-22 above. The defendant is seeking to be wholly exonerated from the consequences of a crime deliberately committed. The prosecution must negative his defence of duress, if raised by the evidence, beyond reasonable doubt. The defendant is, ex hypothesi, a person who has voluntarily surrendered his will to the domination of another. Nothing should turn on foresight of the manner in which, in the event, the dominant party chooses to exploit the defendant's subservience. There need not be foresight of coercion to commit crimes, although it is not easy to envisage circumstances in which a party might be coerced to act lawfully. In holding that there must be foresight of coercion to commit crimes of the kind with which the defendant is charged, R v Baker and Ward mis-stated the law.

    38.  There remains the question, which the Court of Appeal left open in para 75 of their judgment, whether the defendant's foresight must be judged by a subjective or an objective test: i.e. does the defendant lose the benefit of a defence based on duress only if he actually foresaw the risk of coercion or does he lose it if he ought reasonably to have foreseen the risk of coercion, whether he actually foresaw the risk or not? I do not think any decided case has addressed this question, and I am conscious that application of an objective reasonableness test to other ingredients of duress has attracted criticism: see, for example, Elliott, "Necessity, Duress and Self-Defence" [1989] Crim LR 611, 614-615, and the commentary by Professor Ashworth on R v Safi [2003] Crim LR 721, 723. The practical importance of the distinction in this context may not be very great, since if a jury concluded that a person voluntarily associating with known criminals ought reasonably to have foreseen the risk of future coercion they would not, I think, be very likely to accept that he did not in fact do so. But since there is a choice to be made, policy in my view points towards an objective test of what the defendant, placed as he was and knowing what he did, ought reasonably to have foreseen. I am not persuaded otherwise by analogies based on self-defence or provocation for reasons I have already given. The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them. It is not necessary in this case to decide whether or to what extent that principle applies if an undercover agent penetrates a criminal gang for bona fide law enforcement purposes and is compelled by the gang to commit criminal acts.

    39.  I would answer this certified question by saying that 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. I would answer the other certified question as proposed by Lord Steyn.

Conclusion

    40.  The judge's direction to the jury on question 4 involved no misdirection. It was based on the JSB specimen direction current at the time, save that it omitted the qualification made to reflect the erroneous ruling in R v Baker and Ward. The ruling was, on the law as I have stated it, too favourable to the defendant, but he cannot complain of that. It is desirable that the content, and perhaps even the order, of the current JSB directions should be reconsidered in the light of this opinion, but that is not a task which the House should undertake. I would accordingly answer the certified question as indicated, allow the Crown's appeal, set aside the Court of Appeal's order, restore the defendant's conviction and remit this matter to the Court of Appeal so that the defendant may surrender to his bail.

LORD STEYN

My Lords,

    I. The Proceedings in the Central Criminal Court

    and in the Court of Appeal

    41.  In early 2001 the defendant (the respondent on this appeal) stood trial before a judge and jury on two counts of aggravated burglary contrary to section 16(1) of the Theft Act 1968. On 9 February 2001 the jury acquitted the defendant on the first of these counts and convicted him on the second. On an appeal by the defendant to the Court of Appeal (Criminal Division) against his conviction on the second count two important questions of law arose, namely (1) whether a statement by the defendant used in evidence at the trial was a confession within the meaning of section 76(1) of the Police and Criminal Evidence Act 1984 and should have been excluded and (2) whether in the circumstances the defence of duress was available to the defendant. On both these issues the Court of Appeal ruled in favour of the defendant and held that his conviction was unsafe. This decision was reported under the name: R v Z [2003] 1 WLR 1489.

II. Duress

    42.  The Crown now appeals to the House of Lords on the two grounds on which the Court of Appeal found in favour of the defendant.

    43.  My noble and learned friend Lord Bingham of Cornhill has explained the background and analysed the law on duress and its application to this case. Lord Bingham has demonstrated that the excuse of duress was not available in the circumstances of this case. I am in full agreement with the opinion of Lord Bingham. I have nothing to add on the point of duress. But I will examine the second point arising on the appeal, namely whether the statement of the defendant used at trial was a confession under section 76(1) which required the Crown to discharge the burden placed on it by section 76(2).

III. The Facts Relevant to the Confession Issue

    44.  The two burglaries took place at the same premises: the first on Sunday 29 August 1999 and the second on Sunday 23 January 2000. The first count on which the defendant was acquitted can now be put to one side. The defendant was undoubtedly involved in the second burglary. He denied guilt. On 5 June 2000 the police arrested the defendant in respect of inter alia the second burglary. On 7 June 2000 the victims of the second burglary identified the defendant as the perpetrator of that burglary. On the same day the defendant for the first time raised in terms of extreme generality the issue of duress as an excuse for his participation in the second burglary.

 
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