England and Wales Court of Appeal (Criminal Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/1760.html
Cite as: [1998] 1 Cr App R 143, [1997] EWCA Crim 1760, [1998] 1 Cr App Rep 143

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JISCBAILII_CASE_CRIME

ANDREW RODGER KEITH JOHN ROSE, R v. [1997] EWCA Crim 1760 (9th July, 1997)

IN THE COURT OF APPEAL NO: 96/5289/Z3, 96/5596/Z3

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday 9th July 1997

B e f o r e:

LORD JUSTICE KENNEDY

MR JUSTICE NELSON

and

SIR PATRICK RUSSELL

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R E G I N A

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ANDREW RODGER

KEITH JOHN ROSE

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(Handed-down transcript of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR A FULFORD QC & MR RMT PRICE (MISS J ENRIGHT 9/7/97) appeared on behalf of the Appellants

MR AM DAVIES (MISS RAFFETY 9/7/97 only) appeared on behalf of the Crown

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J U D G M E N T

(As Approved by the Court)

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Wednesday 9th July 1997

SIR PATRICK RUSSELL: These two appellants Andrew Rodger and Keith John Rose appeal, with the leave of this Court, against their respective convictions at Woolwich Crown Court on the 8th July 1996 of the offence of breaking prison.

The facts, in summary form, can be shortly stated. Each of the appellants had been convicted of murder, and each were serving sentences of life imprisonment in Parkhurst Prison on the Isle of Wight. Until the 3rd January 1995 the conduct of the appellants in prison had been entirely satisfactory. However on that date the two men, together with a third not now before the court, made good their escape from Parkhurst. On the 8th January 1995, whilst still on the Island, all three were apprehended and returned to custody.

When interviewed the appellant Rodger asserted that his trial judge had recommended a tariff of 12 years when sentence was passed in November 1987. Then, in April 1994, he had been informed by letter from the Home Office that his tariff had been increased to seventeen years. Likewise with the appellant Rose. His tariff had originally been twenty years. In 1994 he too was told that the Home Secretary had increased the tariff, in his case indefinitely.

Each appellant, after receipt of the decisions taken by the Home Secretary, became angry and depressed, and each began to entertain suicidal thoughts. At trial before His Honour Judge Dunn Q.C. and a jury each asserted in evidence that had they not escaped they would have committed suicide. A psychiatrist was called before the jury and he opined that an increase in tariff could result in mental instability in the prisoner, that the instability could become very profound, and that suicidal thoughts were part of the syndrome.

Against this factual background, counsel for each of the appellants submitted to Judge Dunn that the defence of duress by necessity or duress of circumstances was open to them in so far as in each case the prison break had been committed to avoid suicide. There were circumstances in each case which should be left for the consideration of the jury. The learned judge in a lengthy ruling of which we have a transcript, declined to leave the cases to the jury. He held that no valid defence was available. The jury duly convicted.

At one stage during the course of submissions to this Court Mr R.M.T. Price of counsel, on behalf of Rose, sought to introduce into the appeals a distinction between the two cases, but we detect none in principle. Just as Rodger broke prison because of the presence of suicidal thoughts so did Rose, and we can see no reason why the two appeals should not stand or fall together. For his part, on behalf of the Crown, Mr A.M. Davis helpfully conceded that, for the purposes of these appeals only, the break out from Parkhurst Prison was, in each case, because of contemplated suicide, and that suicide would have taken place had the break outs not occurred. If the matter had been left to the jury there were factual issues which would have called for their specific findings, but the approach of Mr Davis to these appeals was plainly the most convenient for the resolution of the real issues before this Court.

The learned judge was referred to a number authorities as we were, but before going to them it is as well to bear in mind the true nature of the necessity which it was contended induced the appellants to act as they did. They did not break out of prison because of the Home Secretary’s decisions upon the tariff. Under no circumstances could that have created anything like a necessity justifying or excusing the break outs. The appellants, in each case, broke prison because of their own suicidal thoughts. The actions of the Home Secretary provided the background to what happened but they did not have any greater causal significance, and in that sense, therefore, did not create the necessity to commit the offence. The real question is whether the suicidal tendencies of the appellants were ever capable of creating a necessity to break out of prison so as to provide a defence to that offence.

There can be no doubt that in appropriate cases a defence of necessity or duress of circumstances is available (though never on a charge of murder, attempted murder or some forms of treason). However, in R v Pommell (1995) 2 CAR 607 Kennedy L.J. sounded a note of caution, and said at page 613 that necessity “has in English law not given rise to a recognised general defence of necessity” and “there are powerful arguments against recognising the general defence”. A number of authorities preceding Pommell were cited where necessity as a defence has been recognised. They included R v Martin (1989) 88 CAR 343 where it was held that a man who drove a car whilst disqualified could have a defence if the driving was occasioned by his wife’s threat of suicide if the defendant did not drive her son to work when he was late, the wife being genuinely suicidal at the time. In R v Conway (1989) 88 CAR 159 a defendant was held entitled to the defence where he had driven recklessly in the belief that he had to do so to avoid death or serious injury to himself or his passenger at the hands of those who were pursuing his car (albeit that such a fear was illfounded). See also R v Willer (1986) 83 CAR 225.

But, as it seems to us, all these authorities had one feature in common which is not present in the instant appeals. The feature which was causative of the defendants committing the offence was in all the authorities extraneous to the offender himself. In contrast, in these appeals it was solely the suicidal tendencies, the thought processes and the emotions of the offenders themselves which operated as duress. That factor introduced an entirely subjective element not present in the authorities. So much Mr Adrian Fulford, Q.C. was constrained to concede, and he acknowledged that if these appeals were to succeed it would involve an extension of the law upon this topic as hitherto reflected in authority and would introduce a purely subjective element divorced from any extraneous influence.

We do not consider that such a development of the law would be justified, nor do we think that such an extension would be in the public interest. If allowed it could amount to a licence to commit crime dependent on the personal characteristics and vulnerability of the offender. As a matter of policy that is undesirable and in our view it is not the law and should not be the law.

Accordingly in our judgment the judge was right to withdraw the proposed defences from the jury and we are satisfied that these appeals against conviction must therefore be dismissed.

In the case of Rodger who was sentenced to a term of thirty months imprisonment to run currently with life imprisonment Mr Fulford submitted that there should be a reduction in the sentence. The jury had added a rider to their verdict requesting the judge to deal with the appellants “with extreme clemency”. No violence had been used in the escape and the circumstances were very exceptional as we have described them.

We have given careful consideration to these submissions but, as the judge pointed out, breaking prison must always be regarded as a very serious offence. We can see nothing wrong in principle in the sentence imposed by the judge nor was it manifestly excessive. The appeal of Rodger against sentence is also dismissed.

LORD JUSTICE KENNEDY: Sir Patrick Russell cannot be here. He is of course a party of the court's handed down judgment. For the reasons that are set out in that judgment these appeals against conviction and Rogers appeal against sentence will be dismissed.

MISS ENRIGHT: Having read the proposed points of certification, I formally request that my Lord certify that point is of general public importance. Along with that request, I formally request that leave be granted to appeal to the House of Lords.

MR PRICE: The Crown make no observations, it is a matter for the Court.

LORD JUSTICE KENNEDY: We have had an opportunity of considering the point. We are grateful to you for putting it writing. We are prepared to certify, we are not prepared to grant leave.