England and Wales Court of Appeal (Criminal Division) Decisions

CHARLES BRONSON, R v. [2001] EWCA Crim 1322 (4th May, 2001)

Case No: 2000/01657/W4

Neutral Citation Number: [2001] EWCA Crim 1322

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 4^th May 2001

LORD JUSTICE HENRY:

1. This is the judgment of the Court. On 17th February 2000 in the Crown Court at Luton, before His Honour Judge Moss, the applicant was convicted, by a majority, and sentenced to:

Count 1: False imprisonment Life Imprisonment

Count 4: Damaging property No separate penalty.

The total sentence was life imprisonment with a specified period of three years under section 28 of the Crime Sentences Act, 1997.

2. The applicant represented himself at trial. He now renews his application for leave to appeal against conviction and sentence after refusal by the Single Judge.

3. The wrongful imprisonment was of Mr Danielson, a prison teacher. The Crown's case was that the applicant had taken him prisoner at Hull Prison and kept him in his (the applicant's) cell against his will from the 1st to the 3rd February. The applicant's defence was that he was settled at Hull, where he had been behaving and improving and was settled and content. He had been told that he would be staying there. Subsequently, he was told that plans had been changed, the Unit he was in was to be closed, and he was to be sent to HMP Woodhill. He feared the regime at Woodhill, and how he might be treated there. He was fearful for its effects, mental and physical, on him. He was afraid of, and did not want to return to, solitary confinement. His case was that because of the threat of the change of prisons and what might happen to him there, he feared for his life, and it was to avert that that he took Mr Danielson hostage.

4. His defence was the emergent defence of duress of circumstances, sometimes called necessity. Simon Brown J gave the outline of that defence in R -v- Martin [1989] 88 Cr App R 343 at 345 (most recently approved in R -v- Abdul Hussain, a decision of this Court presided over by the Vice-President, noted in [1999] Cr LR 570). Simon Brown J, giving the judgment of the Court said:

"The principle may be summarised thus. First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused's will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called `duress of circumstances'.
Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Secondly, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answers to both those questions was yes, then the jury acquit: the defence of necessity would have been established. "

Note the two sorts of threat identified in the first paragraph: threats by people and threats from "... other objective dangers ..." or events.

5. We have constructed a specimen direction along the lines of that exposition of the law:

"False imprisonment is the unlawful and intentional restraint of a person's freedom of movement from a particular place.
You should therefore consider the following questions:
1. Are you sure the defendant intentionally restrained the freedom of movement of Mr Danielson?
If no, find the defendant not guilty
If yes, consider Question 2.
2. Are you sure the defendant was acting unlawfully? On this issue, consider the following questions:
(a) Was the defendant, or may he have been, driven by circumstances to act as he did because he genuinely believed that if he did not act in that way he would soon be killed or seriously injured?
If no, find the defendant guilty.
If yes, consider Question 2(b).
(b) Might the circumstances that you have found were present have driven a reasonable person to do as the defendant did? The reactions of a reasonable person may or may not be the same as the reactions of the defendant himself.
If no, find the defendant guilty.
If yes, find the defendant not guilty."

6. The judge ruled that the defence of duress (in which he included necessity or duress of circumstances) was not open to the applicant:

"... notwithstanding however you felt and what you believed or anticipated might happen, that is not the same as a threat and therefore the defence of duress is not available to you." (Transcript Vol III, Thursday 17th February 2000)

7. When he deals with threats, he is clearly dealing with threats coming from a person (see the summing-up, page 8, line 14-16 and 22-27). It seems to us arguable that is too narrow, dealing only with threats from another person, rather than a threat posed by an event, such as the move to another prison. An example of a threat caused by such an event would be if a wife drove through red lights on her way to hospital, because she believed her husband was dying in the back of the car. In that example too, the questions asked in the specimen direction would be appropriate, and it would be no answer to say that the threat had not come from any person.

8. Accordingly, we are of opinion that there was arguably a misdirection by the judge, and that he should not have withdrawn the defence of duress of circumstances from the jury. For that reason we grant leave to appeal against conviction. But we make two reservations:

first, we leave to the appellate court the question of whether there was any factual basis justifying the questions being put to the jury, ie whether a reasonable jury properly directed could have done anything other than convict; and

second, we have not considered the judge's second reason for withdrawing the defence from the jury (see summing-up page 9, lines 3 - 10, line 16) because we were not confident we understood the point.

9. Turning to the draft Grounds of Appeal dated 5th May 2000, we give leave to appeal on paragraph 3, the right to call witnesses in support of his defence, paragraph 4, the defence of duress of circumstances, and paragraph 5, the breach of Article 6.

10. We refer the application for leave to appeal against sentence to the appellate court.

LORD JUSTICE HENRY: For the reasons set out in the judgment which has been handed down and copies of which are available in court, this application will be granted. Therefore leave to appeal against conviction is granted in the terms set out in the reasons, and leave to appeal against sentence is referred to the constitution of the court hearing the appeal.

MR METZGER: I am most grateful to your Lordships and also for granting legal aid on the last occasion.

LORD JUSTICE HENRY: Yes. You will need it for your solicitors, will you not?

MR METZGER: Indeed, my Lord, particularly with regard to the reports and the other matters that I indicated.

LORD JUSTICE HENRY: Did they assist you on the application that we heard two days ago?

MR METZGER: My Lord, no.

LORD JUSTICE HENRY: So just legal aid for solicitors as from today.

MR METZGER: I am very much obliged.

LORD JUSTICE HENRY: Yes.