England and Wales Court of Appeal (Criminal Division) Decisions

R v. Kashif Mumtaz SIDDIQI [2000] EWCA Crim 79 (20th December, 2000)

Case No: 2000/5263/X1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 20^th December 2000

LORD JUSTICE WALLER:

1. On 10 August 200 in the Crown Court at Guildford before His Honour Judge Bull QC DL and a jury, following a 4 day trial, the appellant was convicted of robbery. On 12 September 2000 he was sentenced to 6 months detention.

2. Three co-accused, Karl William Ridgers, Matthew Cowing and Sumit Sethi each pleaded guilty and were sentenced to 3 years' detention in a Young Offender Institution. The appellant appeals against conviction by leave of the single judge.

FACTS

3. On 29 October 1999 there was a robbery at the Burger King restaurant in Thorpe Park. This was committed by the appellant together with the co-accused Ridgerss and Cowing. Sethi worked at the restaurant and provided the co-accused with information, but was not present during the robbery. The co-accused were all 17 years of age and the appellant was 13 nearly 14 years of age.

4. At the time of the robbery the restaurant was closed to the public and only one member of staff was on duty at the Burger King, the shift manager Mr Akingbehin. The appellant was one of the three accused who entered the restaurant. The three were wearing balaclavas, gloves and Burger King uniforms. One of the other accused grabbed Mr Akingbehin and whilst holding a knife told him to get on the floor. He was then handcuffed and asked for the keys to the safe. The appellant was not involved in these events having been posted in the kitchen as a lookout. Once the outer safe door had been opened a screwdriver was used to force open the main safe. A total of £10,447.13 was taken. The telephone wires were then cut. Mr Akingbehin's hands were tied to bars on the window and tape placed over his mouth. The appellant continued to act as a lookout throughout. After the robbery they left the restaurant and escaped.

5. According to Mr Akingbehin the appellant had "not taken much part in the action". The appellant played no part for example in tying Mr Akingbehin up or opening the. After the robbers left Mr Akingbehin managed to free his right hand and managed to telephone police. Without the assistance of police officers he would have been unable to free himself. Unsurprisingly, he was very frightened throughout the incident and particularly so when he was put on the floor.

6. The prosecution case, so far as the appellant was concerned, was that he had been actively involved in the robbery and had not availed himself of the various opportunities he had to report the matter to police, or absent himself from the arrangements. The defence case was that the appellant was the lookout during the robbery but had only taken part at all because he was acting under duress. He believed that Ridgers would harm him or his family if he reported the matter to police or did not participate.

7. The appellant gave evidence at the trial to the following effect. He was 13 years old at the time of the offence. He was top of his class and year and produced a certificate to that effect. Sethi, who was 4 years older than the appellant, had previously been a friend of his. According to the appellant on Tuesday 26 October 1999 Sethi visited him at his house and mentioned the robbery. At that stage the appellant thought that this was a joke. Sethi said there was a job he knew of but that it was not illegal and also said that this would involve taking money and that he had the keys from his supervisor. The appellant did not believe him and did not think that Sethi would involve himself in a crime. At that stage there was no indication that the appellant should be involved. Sethi subsequently said that he had obtained tickets for Thorpe Park on Thursday 28 October and just before the appellant and Sethi left to go to Thorpe Park on that day Sethi announced that he was meeting friends there. They met Ridgers and Cowing in Hounslow and Sethi had said that Ridgers was "crazy".

8. The appellant at one stage was left at a bus stop whilst the other three went into a shop. On their return they said that they had a knife and Sethi said that this belonged to Ridgers and had nothing to do with him. On arrival at Thorpe Park the appellant, Ridgers and Cowing looked inside the Burger King. Later, on the bus on the way home, the appellant overheard a conversation about the robbery. Sethi then told the appellant what to do and the appellant said that he was afraid because he knew that they had a knife. As they got off the bus Ridgers said "you'd better not back out" and the appellant turned to Sethi who simply shrugged his shoulders.

9. The appellant did not tell his mother because he knew that she would go to the police. Ridgers knew where the appellant lived and the appellant was afraid that he would be beaten up. Ridgers looked at the appellant aggressively.

10. On the day of the robbery the appellant was at his aunt's house. Sethi telephoned and said that Cowing would pick him up. The appellant said that he did not want to go and Sethi told him that he must remember what Ridgers had said and that he had to go. The appellant then went with Cowing to the bus station where they met Sethi. Cowing had a bag with him. The appellant was nervous and shivering. Ridgers then arrived in a car with another man called Nick. On arrival at the park, Burger King clothing was produced which Ridgers told the appellant to put on and Ridgers was told not to hurt the man inside the restaurant. Sethi and the other man at that stage drove off. According to the appellant Ridgers then told him to "hurry the fuck up I've got a knife". This made the appellant think that he would be stabbed if he refused to participate. The appellant was told to put on gloves and a balaclava. The appellant did not have the bag, Cowing had it. It was Cowing who passed items to Ridgers. The appellant simply stood there because he was afraid.

11. After the robbery Ridgers telephoned Sethi and Nick picked them up. Sethi had the money and gave some to Ridgers and he offered the appellant £100 which he refused to accept. The appellant telephoned his mother and she came to collect him but he was too afraid to tell her what had happened. The following day he saw Sethi who gave him £130 and said that he had to take it adding "so that you are involved and can't tell the police. Remember what Karl said".

12. He said he did not want to take part in the robbery and had only done so because he was afraid that Ridgers would hurt him or his family if he refused to take part. He believed the threats. He had no chance to run away, and in any event would not have done so because he was afraid that Ridgers would come after him.

13. In cross-examination he agreed that he was told of the robbery on 26 October 1999 but he did not think then that there was any plan for him to be involved as he thought that Sethi was joking. By Wednesday he agreed that he had been told that handcuffs would be involved and that Sethi, Cowing and another man would be involved but the appellant said that he was undecided at this stage if it was a joke or whether they were serious. He agreed that up to that point he had not been threatened or forced to do anything but he did not know then that there was a plan. He did know that when he was in the Burger King on the Thursday that Ridgers and Cowing were looking around the restaurant in preparation for the robbery but he said that he had not been involved in this. He was not involved in organising the robbery at all and it was only on the way home on that Thursday that Ridgers warned him not to back out.

14. The only point which arises on the appeal relates to the ruling that the judge gave in relation to the calling of certain expert evidence which the defence wished to call in relation to the appellant's mental state on the issue of duress.

The expert evidence

15. On 21 June 2000 solicitors acting for the appellant wrote to the CPS indicating that they were requesting the court to allow more time in order to provide a defence statement from an expert, Dr Peter Misch a Consultant Psychiatrist of the Child Psychology Department at the Maudsley Hospital, in the form of "a medical report concerning the state of our client's mind over the relevant period of time".

16. On 7 July 2000 instructions were given to Dr Misch apologising for the delay in providing relevant material. The letter further indicated that there was a deadline of 4-0 pm 21 July 2000, as given by the court, for service of any report on the court and prosecution. Dr Claire Gaskin a Registrar in Psychiatry and Dr Misch interviewed the appellant for 20 minutes on 17 July 2000. Dr Gaskin then had a further interview with the appellant on that same day lasting 1 hour and 45 minutes. Dr Misch interviewed the appellant's parents also on that same day. Dr Gaskin together with Dr Misch then produced a report covering some 19 pages dated 21 July 2000. The thrust of that report is summarised under the heading conclusions and opinion running from p. 16 to p. 19 and can be summarised as follows. (1) The offence was completely out of character for a boy who presented with no history of antisocial or conduct problems and has functioned well within a close supportive family throughout his childhood and early teenage years. (2) There were no indicators that he was acting differently prior to the offence according both to the school and family or that his behaviour had become more difficult or challenging. (3) I quote directly from the report - "In terms of Kashif's state of mind at the time of the offence, it is difficult to (be) precise about this in retrospect and is clearly contaminated by the length of time between the offence and the current assessment. However, it is clear that Kashif's own perception was that he was in physical danger should he not continue with the offence and that knowing the reputation of his co-defendant, Karl Ridgerss, he took this threat extremely seriously". (4) "In contrast . . . Kashif's behaviour subsequent to the offence prior to his arrest changed. . . . . At the time of the assessment Kashif met the criteria for an Adjustment Disorder as according to the ICD-10 classification of mental and behavioural disorders (F43.2). This has been characterised by predominant disturbance of a number of emotions including symptoms of anxiety, depression, worry and tension..." This conclusion flowed from a recital of the history of what the appellant had told Dr Gaskin during interview running from pp. 6-10 of the report. In summary that history emphasised the fear that the appellant had of the co-accused Ridgers, and the anxiety which built up over the period as he appreciated that he was to be a party to the robbery, something he only finally appreciated on Thursday 28 October as they came back from the visit to Thorpe Park. From that evening the appellant described to Dr Gaskin how he became increasingly preoccupied with thoughts of the robbery; how he did not sleep well that night; how he spent the day at his aunt's house on the Friday and how he had a migraine all day and felt anxious. He described how he became increasingly frightened as the group walked to the Burger King, and when they reached the outside he realised that the robbery was definitely going ahead how he felt like running away. However he said that at this point Ridgers had turned to him and said "hurry the fuck up I've got a knife" and that this made him feel extremely threatened. The appellant also stated that he was extremely frightened after the robbery and continued to have those fears. As stated in his report "he feels that he has personally not done anything wrong and that he would not have been involved in the offence if he had not been so frightened". Kashif also stated that "I know I didn't do anything wrong, I just stood by the door and watched". He stated that he felt guilty about allowing himself to become involved in any way and said that if he found himself in a similar situation in the future he would definitely tell his mother or go directly to the police.

17. One conclusion of the report was that Kashif was a vulnerable young man who was "perhaps more susceptible to threat and duress than other young men of more robust character".

18. It seems that at a conference on 2 August 2000, some 5 days before the trial was due to commence, Mr Bertham, counsel who was to represent the appellant at the trial and who represented the appellant before us, was told by Dr Gaskin that it was likely that at the time of the robbery the appellant was suffering from a recognised psychiatric condition called "an acute stress reaction". Such psychiatric condition is recognised in the International Classification of Mental and Behavioural Disorders Volume 10(F43.0). However, no additional report was prepared to deal with that viewpoint and no additional report accordingly was prepared so as to explain why the conclusion reached in the 21 July report, that it was difficult to be precise about the appellant's state of mind at the time of the offence, was now no longer so.

19. At the trial on 7 August 2000 the judge was asked to make a ruling in relation to the admissibility of the psychiatric evidence which those acting for the appellant wished to call. It is clear from his ruling that he addressed his mind to the report of the 21 July 2000 and to nothing outside that report. We were informed by Mr Bertham that he explained to the judge that if called Dr Gaskin would give the opinion that it was likely that the appellant was suffering from an acute stress reaction at the time of the robbery, but perhaps in the light of the opinions expressed in the report and the fact that no further report had been produced, the judge, not surprisingly, did not reflect that submission in his ruling.

20. The judge was referred to R v Turner [1974] 60 Cr. App. R. 80 particularly the passage in Lawton LJ's judgment at p. 83 where Lawton LJ said this:-

"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If, on the proven facts, a judge or jury can form their own conclusions without help then the opinion of an expert is unnecessary. In such a case, if it is given dressed up in scientific jargon, it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves but there is a danger that they may think it does."

21. The judge was also referred to R v Bowen [1996] 2 Cr App R 157 and in particular to the passage in the judgment of Stuart-Smith LJ at 166 where, after reviewing the authorities, Stuart-Smith LJ said:-

"What principles are to be derived from these authorities? We think they are as follows:

(1) The mere fact that the accused is more pliable, vulnerable, timid or susceptible to threats than a normal person are not characteristics with which it is legitimate to invest the reasonable/ordinary person for the purpose of considering the objective test.

(2) The defendant may be in a category of persons who the jury may think less able to resist pressure than people not within that category. Obvious examples are age, where a young person may well not be so robust as a mature one; possibly sex, though many woman would doubtless consider they had as much moral courage to resist pressure as men; pregnancy, where there is added fear for the unborn child; serious physical disability, which may inhibit self protection; recognised mental illness or psychiatric condition, such as post traumatic stress disorder leading to learned helplessness.

(3) Characteristics which may be relevant in considering provocation, because they relate to the nature of the provocation, itself will not necessarily be relevant in cases of duress. Thus homosexuality may be relevant to provocation if the provocative words or conduct are related to this characteristic; it cannot be relevant in duress, since there is no reason to think that homosexuals are less robust in resisting threats of the kind that are relevant in duress cases.

(4) Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be relevant.

(5) Psychiatric evidence may be admissible to show that the accused is suffering from some mental illness, mental impairment or recognised psychiatric condition provided persons generally suffering from such condition may be more susceptible to pressure and threats and thus to assist the jury in deciding whether a reasonable person suffering from such a condition might have been impelled to act as the defendant did. It is not admissible simply to show that in the doctor's opinion an accused, who is not suffering from such illness or condition, is especially timid, suggestible or vulnerable to pressure and threats. Nor is medical opinion admissible to bolster or support the credibility of the accused.

(6) Where counsel wishes to submit that the accused has some characteristic which falls within (2) above, this must be made plain to the judge. The question may arise in relation to the admissibility of medical evidence of the nature set out in (5). If so, the judge will have to rule at that stage. There may, however, be no medical evidence, or, as in this case, medical evidence may have been introduced for some purpose, e.g. to challenge the admissibility or weight of a confession. In such a case counsel must raise the question before speeches in the absence of the jury, so that the judge can rule whether the alleged characteristic is capable of being relevant. If he rules that it is, then he must leave it to the jury.

(7) in the absence of some direction from the judge as to what characteristics are capable of being regarded as relevant, we think that the direction approved in Graham without more will not be as helpful as it might be, since the jury may be tempted, especially if there is evidence, as there was in this case, relating to suggestibility and vulnerability, to think that these are relevant. In most cases it is probably only the age and sex of the accused that is capable of being relevant. If so, the judge should, as he did in this case, confine characteristics in question to these".

22. Following citation of those authorities the judge ruled as follows:-

"My first task is, therefore, to decide whether the expert evidence, if correct, would show that this defendant is abnormal. . . . .The words of Lawton LJ are the key:

"If, on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary". . . . .I have no doubt whatsoever that the jury and, indeed, the judge are perfectly able to form their own conclusions without the help of an expert upon the feelings of force, of duress, of worry, and the conflict of emotions of a young man of fourteen who asks the jury to understand that he was frightened of what others would do and that he did something which he would not otherwise have done because he was afraid of them in the context of this case. I thus have to answer the first question, which is whether, in my judgment, the defendant is abnormal? No, he is certainly is not abnormal".

23. Thus it was that the judge ruled the psychiatric evidence inadmissible.

24. Before this court Mr Bertham was critical of the judge's phraseology and his use of the word abnormal. However, he ultimately accepted that if what was being sought to be put in was psychiatric evidence limited to the contents of the psychiatric report dated 21 July 2000, he would be unable to criticise the judge's conclusion that such evidence would be inadmissible when applying the principles set out in Bowen (supra). The first report did not provide evidence that the appellant was suffering from some mental illness, mental impairment or recognised psychiatric condition which made him more susceptible to pressure and threats. If anything, all it went to was seeking to demonstrate that in the doctor's opinion the appellant was especially vulnerable to pressure and threats and thus principle (5) would indicate that such evidence should not be admissible.

25. It was possibly an awareness of the difficulty with the principle in Bowen that led those advising the appellant to seek, after the trial and for the purposes of an appeal, an addendum to the original report. An addendum was produced dated 6 September 2000, and an application has been made to call Dr Gaskin to give evidence in the Court of Appeal pursuant to the powers of the court under s 23(1) of the Criminal Appeal Act 1968 in accordance with that addendum. That section provides so far as relevant that the Court of Appeal may

"if they think it necessary or expedient in the interests of justice-

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and

(c) receive any evidence which was not adduced in the proceedings from which the appeal lies".

26. Section 23(2) provides:-

"The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to-

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings".

27. In the further report Dr Gaskin and Dr Misch summarise what they suggest are key points from their original report. The report does not rely on any further interview with the appellant. The report suggests (1) that the appellant's mental state appeared to be normal prior to the offence; (2) that he became increasingly pre-occupied with thoughts of the robbery and with his belief that his physical safety was at risk should he not continue with the robbery; (3) that throughout the day of the offence his anxiety levels continued to rise; and (4) that the appellant could not recall the exact details of the robbery but remembers feeling that he wanted to leave and being extremely frightened both during and immediately after the robbery. The conclusion on his mental state was "that the above description indicates that the appellant was experiencing an extremely high level of stress and anxiety and felt under physical threat". The opinion was then in these terms:- "(1) At the time of the offence Kashif (the appellant) was suffering from a recognised psychiatric condition i.e. an acute stress reaction as set out in the International Classification of Mental and Behavioural Problems volume 10(F43.0). (2) Kashif was acting under duress and fear of his physical safety. An acute stress reaction is a recognised, transient psychiatric disorder of significant severity which develops in an individual without any other apparent mental disorder in response to an exceptional physical or mental stress which usually subsides within days. The stress may be an overwhelming, traumatic experience involving a serious threat to the security or physical integrity of the individual or of a loved person. The circumstances of the threats made to Kashif would fit this criteria". Then they added - "In the appellant's case we have outlined in the original reports "elements of his character which indicate that he would be vulnerable to stress under extreme circumstances". The symptoms typically include a state of "daze", as described by Kashif in the immediate moments leading up to the robbery and during it. . . . under the degree of acute stress described, cognitive (thinking) processes are disrupted and an individual will demonstrate a lack of decision-making and problem-solving abilities, out of keeping with their normal level of functioning. These symptoms will have significantly affected Kashif's ability to exercise control over his participation in the robbery at which time he was suffering from an acute stress reaction".

Would the above evidence as added by the doctors have been admissible at the trial?

28. For the following reasons in our view it would not. First, what the evidence seems to amount to is not that the appellant was suffering from some psychiatric condition prior to partaking in the activities which led up to the robbery, but that as a result of partaking in the activities which led up to the robbery, including the threats which led him so to do, at the time of the robbery he suffered from the acute stress reaction i.e. a recognised psychiatric condition. The evidence does nothing to establish that the appellant was suffering from a psychiatric condition rendering him other than a normal 13 to 14 year old resisting the threats of those who were requiring him to take part in the robbery. It was only ultimately, having succumbed to those threats and taking part in the robbery which produced the psychiatric condition.

29. Second, there was a basic inconsistency between the first report and the addendum. In the first report the doctors were saying that it was difficult to be precise about the state of mind of the appellant at the time of the offence in retrospect and because of the length of time between the offence and their current assessment. In the addendum, for reasons which they nowhere explain, they were suggesting positively that the appellant suffered from a psychiatric condition at the time of the offence. Such inconsistency would have rendered the psychiatric evidence of no assistance to the jury.

30. Third, and this in essence is a combination flowing from the first and second points already made, the process of reasoning of the doctors is to work backwards from the date of their assessment. What we would understand from that process was that at the time of their first report they were not prepared to say what the psychiatric condition of the appellant was at the time of the offence, but by the time they came to their second report, felt that they could go so far as to say that he had this psychiatric condition as at the time of the offence. They could not say that he had this psychiatric condition at any stage prior to the actual commission of the offence and thus they could not say that he had that psychiatric condition at the stage when he was being threatened and on his case forced to take part in the robbery. Thus he was in the same position as any 13 to 14 year old child in relation to resisting threats being made to force him to take part in a robbery. It was up to the jury to rule whether the defence of duress was open to him.

Evidence in the Court of Appeal

31. It follows from the above ruling that on any view this evidence should not be admitted in the Court of Appeal. That being so it is unnecessary to deal with any points that might have arisen on that application if we had been of the view that this evidence was admissible if it had been relied on before the trial judge.

32. It is for these reasons that we ruled at the hearing on Tuesday 5 December 2000 that this appeal would be dismissed and the application to call fresh evidence would also be dismissed.