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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    69.  Alongside this, the Commission adhered to the view that duress should be a complete defence to all crimes, not simply a matter of mitigation:

    "31.4  We believe that if it is wrong even in respect of murder to condemn the defendant for not acting heroically rather than reasonably, it would be even more unjust to condemn defendants for lesser acts done under the same conditions. To censure and punish defendants who found themselves in such circumstances would bring the law into disrepute. To take a recent example, it was confirmed in Lewis [The Times, 19 November 1992] that a threat of a reprisal that it is unreasonable to expect the witness to resist is a defence to a charge of contempt in respect of a refusal to give evidence. It would, in our view, be intolerable if, for instance, a wife whose husband threatened her with serious injury or death, and who as a result reasonably refused to give evidence against him, had nonetheless to be convicted of the offence of contempt."

The Commission also saw practical difficulties in the way of treating duress as mitigation:

    "31.7   . . . If duress is rejected as a defence, that must be either because the defendant who acts under duress is at some way at fault, albeit it only by not behaving heroically; or because there is some public policy reason for convicting him even though he is not at fault. If he is at fault, the law should mark his fault by a penalty, or at least should not assume that in no case will an effective penalty be imposed. If the reasons for rejecting duress as a defence are ones of public policy, it is hard to see that that policy is forwarded by a regime that assumes that convictions are to be purely nominal in nature; or, even more, that assumes that in some cases the law will not be enforced at all."

    70.  As Professor Andrew Ashworth (in Principles of Criminal Law, 4th edition 2003, p 228) points out, there are other policy problems with relying on duress as a mitigating factor:

    "Mitigation may be right if 'desert' is the basis for sentence, but supporters of deterrent sentencing have a particular problem. Their general approach is to maintain that the stronger the temptation or pressure to commit a crime, the stronger the law's threat should be in order to counter-balance it. The law and its penalties should be used to strengthen the resolve of those under pressure."

That is, indeed, a common approach to sentencing: in drug smuggling cases, for example, the 'mule' may well have been subjected to intense pressure to carry the goods into the United Kingdom, but heavy sentences are imposed, not only to deter others from succumbing to such pressures, but also to deter the barons from using them. Mr Perry, for the Crown, argued that it was doing the vulnerable no favours to expand the scope of duress for their benefit, as this would merely encourage their duressors to exploit them. As Professor Ashworth continues:

    "The difficulty with this analysis is that it suggests heavy deterrent sentences for all cases except the most egregious, where it prescribes no penalty at all - a distinction with momentous effects but no clear reference point."

    71.  The Commission was, of course, thoroughly aware of the practical difficulties caused by the fact that duress is most likely to arise in terrorist, gang or other organised crime offences and that, particularly in such circumstances, "the defence of duress is so easy to raise and may be so difficult for the prosecution to disprove beyond reasonable doubt, the facts of necessity being as a rule known only to the defendant himself" (Law Com No 218, para 30.15, quoting Lord Lane CJ in R v Howe [1986] QB 626, 641, to which Lords Bridge and Griffiths attached particular weight in the House of Lords [1987] AC 417, 438 and 444).

    72.  The Commission's solution, strongly supported by the judiciary and most practitioners, was to place the persuasive burden of proving duress, on the balance of probabilities, on the defence (paras 30.16, 33.1 to 33.16). Duress, in their view, was different from other defences, in that the facts on which it is founded are not part and parcel of the incident during which the offence was committed. They will characteristically have happened well before, and quite separately from, the actual commission of the offence that the prosecution must know about and must prove. The difficulty of the prosecution disproving the unilateral claims of the defendant made it "hardly surprising that . . . judges and others should express lack of enthusiasm about the defence of duress as a whole."

    73.  This solution, coupled with the Commission's "sell-out to subjectivism", has been strongly criticised: see Jeremy Horder, "Occupying the moral high ground? The Law Commission on duress" [1994] Crim LR 334. The moral basis of the defence remains a hot topic of debate: see, for example, Professor William Wilson, "The Structure of Criminal Defences" [2005] Crim LR 108. I accept that even the person with a knife at her back has a choice whether or not to do as the knifeman says. The question is whether she should have resisted the threat. But, perhaps because I am a reasonable but comparatively weak and fearful grandmother, I do not understand why the defendant's beliefs and personal characteristics are not morally relevant to whether she could reasonably have been expected to resist. No doubt unduly influenced by Professors Sir John Smith, Edward Griew and Ian Dennis, therefore, I remain attracted by the Law Commission's proposals. The real reasons for the unpopularity of the defence are those given by Lord Lane CJ in Howe: that it is readily raised by the least deserving of people but difficult for the prosecution to disprove. We are told by Mr Perry that, perhaps because of advances in forensic science which have made crimes easier to detect and more difficult to defend, duress is now very frequently raised, often late in the day, by defendants up and down the country.

    74.  If we are not to have legislation to alter the burden of proof, and I agree that it is not open to us to do it ourselves, then I understand your lordships' desire to maintain the objective standards set by Lord Lane in Graham. But it seems to me that the best counter to Lord Lane's concerns is the Fitzpatrick doctrine which is the issue in this case. Logically, if it applies, it comes before all the other questions raised by the defence: irrespective of whether there was a threat which he could not reasonably be expected to resist, had the defendant so exposed himself to the risk of such threats that he cannot now rely on them as an excuse? If even on his own story he had done so, then the defence can be withdrawn from the jury without more ado; if that issue has to be left to the jury, but they resolve it against him, there is no need for them to consider the other questions.

    75.  But how far does this principle go? The 1985 draft code (Law Com No 143, clause 45(4)) and the 1989 draft (Law Com 177, volume 1, clause 42(5) as both provided that the defence of duress "does not apply to a person who has knowingly and without reasonable excuse exposed himself to the risk of such a threat." The code team believed that this was to the same effect as the 1977 draft (Law Com No 83, draft Criminal Liability (Duress) Bill, clause 1(5)) which had referred to someone who "knew he would or might be called upon to commit the offence with which he is charged or any offence of the same or a similar character". They must therefore have thought that the words "such a threat" encompassed not only the harm threatened but also the reasons why the threat was made. Similarly, the draft Criminal Law Bill (annexed to Law Com No 218) provided in clause 25(4):

    "This section does not apply to a person who knowingly and without reasonable excuse exposed himself to the risk of the threat made or believed to have been made."

    76.  I agree, of course, that there was nothing in the case law before R v Baker and Ward to limit the kinds of crime which the defendant should have foreseen that he might be compelled to commit. I also agree that the limitation is unworkable in practice and difficult to justify in principle. The principle is that someone who voluntarily accepts the risk of being placed in the "do it or else" dilemma should not be allowed to use that dilemma as an excuse (even if in some circumstances it might amount to mitigation). There are, however, two other questions.

    77.  The first is that the cases tend to talk about exposing oneself to the risk of "unlawful violence". That, it seems to me, is not enough. The foreseeable risk should be one of duress: that is, of threats of such severity, plausibility and immediacy that one might be compelled to do that which one would otherwise have chosen not to do. The battered wife knows that she is exposing herself to a risk of unlawful violence if she stays, but she may have no reason to believe that her husband will eventually use her broken will to force her to commit crimes. For the same reason, I would say that it must be foreseeable that duress will be used to compel the person to commit crimes of some sort. I have no difficulty envisaging circumstances in which a person may be coerced to act lawfully. The battered wife knows very well that she may be compelled to cook the dinner, wash the dishes, iron the shirts and submit to sexual intercourse. That should not deprive her of the defence of duress if she is obliged by the same threats to herself or her children to commit perjury or shoplift for food.

    78.  But this brings me to a concern which I have had throughout this case. It is one thing to deny the defence to people who choose to become members of illegal organisations, join criminal gangs, or engage with others in drug-related criminality. It is another thing to deny it to someone who has a quite different reason for becoming associated with the duressor and then finds it difficult to escape. I do not believe that this limitation on the defence is aimed at battered wives at all, or at others in close personal or family relationships with their duressors and their associates, such as their mothers, brothers or children. The Law Commission's Bills all refer to a person who exposes himself to the risk "without reasonable excuse". The words were there to cater for the police infiltrator (see Law Com No 83, para 2.37) but they are also applicable to the sort of association I have in mind. The other elements of the defence, narrowly construed in accordance with existing authority, are more than adequate to keep it within bounds in such cases.

    79.  The certified question on this part of the appeal was:

    "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."

As will be apparent, I would have chosen option (ii), together with the further explanation of the concept of "voluntary association with others" given in paragraph 78 above. It follows that I too would allow the Crown's appeal on this part of the case.

    80.  On the other part of the case, I would also allow the Crown's appeal, for the reasons given in the opinion of my noble and learned friend, Lord Steyn, with which I agree.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    

 
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