England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		24th July 2013

LADY JUSTICE HALLETT:

Background

1. On 29th September 2007 the appellant, then aged 23, the mother of a young child and 3 months' pregnant with her second child, flew from the United Kingdom to Jamaica with 18-year-old Aaron Blackstock, her co-accused. They carried three suitcases on the way out but returned on 11th October 2007 with four suitcases; three of which contained cocaine, with a total quantity of 1.26 kilograms at a purity of 100% and an approximate value of £64,000.
2. When the couple were stopped by customs officers the appellant, Coats, did all the talking. Meanwhile four men, including Jai Boucher and Chesham Walters, allegedly the organisers of the enterprise and waiting for them at the airport were also arrested. The four men were later released after questioning without charge. However, Coats and Blackstock were charged. Coats was initially remanded in custody and then she was remanded on bail in November and the case was prepared for trial.
3. Blackstock pleaded guilty, claiming in a Newton hearing that Boucher had forced him to commit the offence to pay off a drugs debt. He asserted that the appellant did not know of the drugs. The trial judge rejected his evidence and sentenced him as the younger and more junior partner in the crime to 6 years' detention in a young offender institution.
4. Coats pleaded not guilty, claiming she was in a sexual relationship with Blackstock and had gone on holiday to Jamaica with him paid for by his family. As far as she was concerned, the purpose of the trip, she insisted, was wholly innocent. She made no mention of being pressurised into committing the offence by anyone. She positively asserted that she had not been threatened.
5. She told the jury that she did not know that there were people waiting for her at Heathrow Airport, including Walters, who she now says was in fact the father of her unborn child. She denied that the contact "Baby father" in her mobile telephone referred to Walters. She said she did not know Jai Boucher. Blackstock had lost his mobile while they were away and therefore he must have been the one making calls to Walters and Boucher, not her.
6. On 7th November 2008 the jury convicted her. She was seen for the purposes of the production of a pre-sentence report. She maintained the same account to the probation officer, claiming she and Blackstock had been in a relationship for a year and that although she was pregnant by another man at the time they still went on holiday together. She added that she was involved in sexual relationships with a number of men at the time. She described an abusive childhood. The probation officer considered her circumstances, believed she was "open and genuine" and recommended a suspended sentence. However, the judge had no option but to sentence her to a lengthy term of imprisonment, namely one of 10 years. Her estimated date of release on licence is in a few weeks' time.
7. The evidence against Coats consisted of not only her participation in the trip but in her alleged organisation of it. The prosecution pointed to the timing of her application for a passport, the fact that she was the one in possession of the relevant phone, upon the fact she did all the talking to Customs officers and upon footage of her on the mobile phone, taken in Jamaica and at the airport. The footage, in particular, suggested she was the person in charge of this importation and of Blackstock.
8. The appellant has never attempted to appeal her conviction and her first attempt at appealing her sentence failed at the leave stage. She did not renew her application. However, in July 2009 Chesham Walters was sentenced to life imprisonment for the brutal murder of an associate, in what appears to have been a drugs related killing. In September 2009 the carer of the appellant's 6-year-old child, Tracey Taylor, the paternal grandmother of the child, contacted the Criminal Cases Review Commission. They investigated and consulted a very experienced consultant psychiatrist, Dr Gillian Mezey, to report upon the appellant. She concluded that the appellant suffered from Battered Woman's Syndrome as a result of her relationship with Walters.
9. The appellant now appeals against conviction and sentence upon a Reference by the CCRC, relying on Dr Mezey's opinion. Miss Sarah Forshaw QC, on the appellant's behalf, contends that the findings of Dr Mezey indicate that the appellant now has available to her an arguable defence of duress. It is said that the very fact that she is now known to suffer from Battered Woman's Syndrome provides a reasonable explanation for the failure to run that defence at trial. If she failed to persuade us that the defence of duress was made out, Miss Forshaw still hoped to persuade us that there was sufficient in Dr Mezey's report to allow the court to reduce the sentence.

Chronology

10. Before considering the psychiatric evidence it is necessary to rehearse the very helpful chronology provided by counsel. The appellant was born in August 1984. In 1992, 1995 and 1996 Walters, still a teenager, was convicted of offences of robbery and causing grievous bodily harm, serious enough to merit a sentence of 6 years at a young offender institution at the age of just 16. On 6th April 2002 the appellant gave birth to a daughter, fathered by a young man called Jayden Goshal. On 20th August 2003 Walters was convicted of another offence, this time possessing an offensive weapon and again sentenced to imprisonment. On 1st September 2003 the appellant attended her general practitioner complaining of depression. On 7th November 2003 she attended again with stress related problems, and said she was depressed after ending what she told the doctor was a violent relationship. On 12th July 2005 an unidentified woman, not said to be this appellant, made an allegation of domestic violence against Walters. Another allegation of a similar nature was made on 14th August. Both were abandoned.
11. It is not clear when Miss Coats began her relationship with Chesham Walters. There are some references in the papers that it might be that same year (2005). However, it might well have been later. Another allegation made by an unidentified female of domestic abuse was made against Chesham Walters in January 2006. In April 2006 he was sentenced to 4 months' imprisonment for threatening words and behaviour. On 21st September 2006 two women made an allegation against him that he had set his dog on them. In March 2007 the appellant was alleged to have been involved in an incident in which her dog attacked someone. On 4th June 2007 the appellant miscarried her second child at about 11 weeks. On 15th July 2007 there was the first reported incident of violence by Walters on the appellant. The appellant told people at the time that Walters had repeatedly punched her, prevented her leaving, and set the dog on her, as a result of which she suffered a bite on her lip and stomach. She told the investigating officers that Walters "always gets violent when he's had an alcoholic drink" and he had been drinking heavily prior to the incident. She described herself to the police as "feisty" - a description she has used on a number of occasions since. She did not want to support a prosecution because Walters might retaliate by kicking her doors in. On 16th July she told the police she was now safe with a friend and she wished to withdraw her statement.
12. On 25th July the appellant applied for a passport for the first time. On 24th September Chesham Walters was sentenced to another term of imprisonment, this time suspended, for possessing an imitation firearm. He was electronically tagged. On 29th September 2007 a close friend, described by the appellant as one of her best friends, sent Miss Coats a text at 12.36 saying: "But he's your baby father." At 12.37 she sent another: "Try wid him, you love him!" At 12.39 a third text was sent: "That's what u used to like your up and down at the moment, it's your emotions." The relevance of those texts is said to be that they showed the appellant considering breaking off her relationship with Walters and being encouraged by her best friend to stay with him because she loved him and he was the father of her child.
13. Hours later the appellant and Blackstock flew to Jamaica. On 11th December Walters had his 4 months suspended sentence activated. On 3rd May 2008 J was born. The appellant says Chesham Walters is the father. On 30th May 2008 there was an argument between Walters and the appellant at the appellant's home address. They did not leave together but Walters occasionally spent the night with her. Walters was accused of slapping her on the face and causing damage to the frame of the front door. He left the address with their baby. Coats called the police because she felt this was the "worst incident to date". She told the police there had been previous incidents but she had not called them before. A comment on the risk assessment was to the effect: "no controlling issues".
14. In July 2008 Walters was convicted of a public order offence and fined. On 4th August 2008 he was stopped with a baby in a pram walking towards the Underground. He was drunk. He was arrested and became violent. The appellant attended the station and stated that her child had been taken by the father without consent and she took the baby back. At that time she was described as his "ex girlfriend". On 7th August she moved into a woman's refuge. On 20th August 2008 she provided a withdrawal statement regarding the incident on 4th August 2008. At the end of August 2008 she moved out of the woman's refuge and back home because she could not afford to pay for both her own accommodation and the refuge.
15. On 3rd October 2008 the appellant and Walters were found at the appellant's home. Walters was said to have become angry with the appellant when she was speaking too loudly. He was afraid she would wake the baby and she did. Walters demanded to know where his hoodie was. When she told him his cousin had taken it he became angry and punched the bathroom door twice. She claimed that he then grabbed hold of her so she grabbed him too. They struggled. His chain broke. He became more angry. She claimed he held her down on the bed spat on her, dragged her across the floor by her hair, picked up a belt and hit her on her right leg. The fighting stopped. She told him she was going to get some cigarettes but called the police instead.
16. Initially she was reluctant to provide a statement but she was persuaded eventually to make a brief one. It was noted also that this was the first time Coats had said that Walters had been violent when sober and that she claimed he was controlling.
17. On 1st October 2008 a Detective Constable Goddard recorded a conversation with Coats about the incident on 3rd October. On 8th October Social Services were told that she was withdrawing her statement. They made an unannounced home visit two days later and both Coats and Walters were at Coats' home. On 16th October Walters was convicting of assaulting a police constable.
18. On 25th October 2008 Walters murdered Luthan Leandre. On 5th November 2008 the appellant's trial commenced. On 7th November 2008, the day that she was convicted, Walters attended the home address of his son's guardian wearing a bullet proof vest and demanding his son. He was drunk. On 11th November he went to the prison where Coats was incarcerated. They had an argument. On 13th November 2008 he again went to demand his son from the guardian. On 14th November 2008 he was again drunk demanding his son. On that occasion he threatened to shoot a police officer. On 14th November 2008 the local authority applied for an Emergency Protection Order for the child.
19. On 27th July 2009 Walters was convicted of murder. He was initially sentenced to a minimum term of 30 years' imprisonment as part of a life sentence. This was later reduced to a minimum term of 27 years. When they were both in prison Walters wrote to the appellant and we have copies of some of those letters as proof of Walters' attitude towards the appellant and his attempt, it is said, to threaten and control her.

Medical reports

20. In her first report, dated 8th July 2011, Dr Mezey noted that the appellant had witnessed violence between her father and mother and suffered sexual abuse by her father. He committed suicide when she was 14 years old. Her mother remarried and the appellant claimed her stepfather also made sexual advances to her when she was 16. Dr Mezey opined that these early experiences would have increased the appellant vulnerability and made her more likely to enter into abusive relationships herself unable to deal appropriately with abuse or violence. The appellant's statement to the CCRC contained allegations of several incidents of domestic violence by Walters, yet, after each incident, the appellant had resumed her relationship with him. This was typical of women suffering from Battered Woman's Syndrome. Without having seen the appellant, Dr Mezey thought her account consistent with and highly suggestive of Battered Woman's Syndrome. However she could not make a diagnosis without examining her.
21. By the time of her second report, dated 28th October 2011, Dr Mezey had seen the appellant. She again noted that domestic violence in which the appellant witnessed severe and life threatening incidents was a feature of her life. The appellant gave the doctor the impression she felt responsible for her father's death. We interpose, in her evidence before us, she gave a similar impression stating that there may have been a link between his abuse of her and his suicide.
22. The doctor asserted that the appellant's history revealed a pattern of severe and repeated domestic abuse upon her, by Walters, prior to and after her arrest. Dr Mezey thought the threat of violence from Walters was ever present and that the appellant felt she had no alternative but to comply with Walters' requests or demands in fear of the consequences for her, her children and her family. Therefore, when Walters told her to commit the offence of importing drugs, in reality, she had no option. Her state of mind was consistent with Battered Woman's Syndrome and was such that she was prevented from doing or saying anything which would displease or antagonise him. She concluded that the appellant was not only suffering from Battered Woman's Syndrome at the time of the offence but that she continued to exhibit many of the characteristics, psychological, behavioural and cognitive deficits of the syndrome. These would have impaired her judgment and her perception of the degree of threat.
23. The prosecution initially instructed a Dr Dhar, also an expert in this field. He did not have the advantage of examining or interviewing the appellant but based on Dr Mezey's observations, he offered his opinion on whether the appellant's account was genuine. He thought it likely that it was.
24. The court refused funding for Dr Dhar to attend and repeat his conclusions, because (a) as he would no doubt be the first to accept, he is not the best judge of whether the appellant's account is capable of belief; and (b) in any event that is the court's role. However, we were prepared to proceed on the basis that if we found the appellant's account capable of belief, as Dr Mezey did, then Dr Dhar's conclusion would be the same as hers, which is that the appellant may well have been suffering from Battered Woman's Syndrome at the time of the offence.
25. We also accepted, as Miss Forshaw invited us to do, Dr Dhar's helpful recitation of the main features of Battered Woman's Syndrome which he informed us may have three phases throughout the chronic and repeated abuse. We shall not repeat what Dr Dhar has said. It is set out in full in relation to the syndrome at pages 536 to 538 of our papers. The parties agree that, for our purposes, we need to focus on the two key features of Battered Woman's Syndrome, namely learned helplessness and traumatic bonding.
26. Learned helplessness would be of particular relevance to a possible defence of duress. The term is used to describe the reaction of a victim to chronic and repeated abuse, whereby they feel that whatever they do nothing will change. They have no way of physically or emotionally breaking free from their abuser and the abuse. They cannot extricate themselves from the violent situation no matter how many cries for help they may make. They become increasingly passive.
27. Traumatic bonding is the attachment that a victim has to their abusers which may make them supportive of the abuser and loyal to them. It may mean a victim will stay with their abuser through a variety of emotions but particularly through fear.
28. Given the importance of the genuineness of the appellant's account and the significance of these reports, we considered it necessary to hear from the appellant and from Dr Mezey. The prosecution wished us also to hear from Dr Joseph, another very experienced consultant psychiatrist, albeit not in this field. Miss Forshaw took exception to our doing so. She argued this bordered on "expert shopping". She also criticised the Crown for the delay in instructing Dr Joseph, the lack of proper formality in applying to call him until a very late stage and the fact that they arranged for Coats to be interviewed by Dr Joseph without giving proper notice to the appellant's legal team. Had notice been given, they might have ensured someone was present at the interview to represent her interest. However, Mr Mullins, for the Crown, pointed out they did have notice because in a directions hearing before me, on May 1st 2013, Mr Mullins told me, in open court, that Dr Joseph would be visiting the appellant a week later.
29. We considered Miss Forshaw's objections in the light of those comments and we saw force in some of the criticisms of the Crown. It has known for some time the evidence and arguments it had to meet and it has been somewhat dilatory in making the proper applications and giving the required notice under the Rules. We do not expect the Rules to be ignored. They apply to both prosecution and the defence. However, the test for this court is whether or not it is in the interests of justice to receive Dr Joseph's evidence. The appellant has had ample notice of what Dr Joseph was to say and the experts have met and prepared a joint statement. Thus, there can be no true prejudice to the appellant in our considering what each doctor has to say. The failure to make timely applications has not in fact inconvenienced the order. Accordingly we were prepared to hear from Dr Joseph, on the same terms as we heard from the other witnesses in the interests of justice.

Joint position statement

30. The respective positions of the doctors have been summarised in a joint statement dated 18th July 2013.

(i) Dr Mezey and Dr Joseph differ in terms of how serious they consider Miss Coats' experiences of domestic violence to have been. Dr Mezey considers the violence to have been extremely severe and at times life threatening involving both Miss Coats and her children. Dr Joseph considers the violence to have been of lesser severity. Both agree that it is ultimately a matter for the court to determine the nature of the relationship between the appellant and Mr Chesham Walters and the degree of violence the appellant may have suffered within that relationship.

(ii) They disagree on how apparent inconsistencies in the appellant's account of the violence she suffered should be interpreted. Dr Mezey states that inconsistent reporting of domestic violence is a recognised feature of Battered Woman's Syndrome and would apply to the appellant. Dr Joseph recognises the inconsistency in reporting violence can sometimes be a feature of Battered Woman's Syndrome but does not believe it explains inconsistencies in the appellant's case.

(iii) They agree that Battered Woman's Syndrome is a variant of post dramatic stress disorder (PTSD), a recognised psychiatric condition which can arise as a result of domestic violence.

(iv) They disagree as to whether the appellant was suffering from Battered Woman's Syndrome at the time of the offence. Dr Mezey believes that she was suffering from BWS at the time of the offence while Dr Joseph is doubtful that she was there. The reasons for the disagreement are due to differing interpretations of any apparent inconsistencies in the appellant's account and whether core features of Battered Woman's Syndrome notably learned helplessness and traumatic bonding were present.

(v) They agree that if the appellant was suffering from Battered Woman's Syndrome at the time of the offence this would be a significant factor to take into account when considering whether she was acting under duress at the material time.

Issues

31. Thus, the issues for the court today are:

(i) Whether the appellant may have been suffering from Battered Woman's Syndrome at the time of the offence; and (ii) If so, was it a severity and degree that it might have afforded her the defence of duress?

Duress

32. In answering those questions we bear in mind that once raised the defence of duress must be disproved by the Crown and there are a number of elements to be considered.
33. The defence will only apply if a person of reasonable firmness, sharing the characteristics of the defendant might also have yielded to the threat. The characteristics may include age, sex, pregnancy and recognised mental illness or psychiatric conditions, such as post-traumatic stress disorder. A threat of physical violence to a pregnant woman therefore might be more serious because of the risk to the unborn child. The threat may be by direct human threat or by force of circumstances or situation. There does not need to be a specific express threat of violence but it must be sufficiently cogent. It must be immediate, albeit the courts have never defined "immediate" with any degree of precision. The threat must have been effective at the time the offence was committed.
34. The defence of duress only excuses criminal conduct if "placed as he or she was there was no evasive action she could reasonably be expected to take" and the defendant honestly and reasonably believed there was no other option available to them. As far as evasive action is concerned, in R v Hassan formally R v Z [2005] 2 AC 467 Lord Bingham provided this guidance at paragraph 28:

"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."

Miss Forshaw submitted that given the severity of the appellant's condition, as found by Dr Mezey, the learned helplessness meant that she was unable to identify evasive action and avoid committing a crime. In the words of the doctor, victims "lose the ability to trust people outside of the relationship or believe there is anything that can be done to help them or stop the violence." "The predominant presentation as the violence progresses is one of increasing paralysis, passivity and a narrowing or constriction of perceived options for escape."

35. On that basis, Miss Forshaw attempted to persuade us that in certain factual circumstances, that the defence of duress might be available to a woman suffering from the syndrome. Mr Mullins, on behalf of the Crown, accepted it might.

Evidence

36. Miss Forshaw helpfully took us through the various criteria in section 23(2) of the Criminal Appeal Act 1968, by which we are entitled to receive evidence not induced in trial. We can do so if it is necessary or expedient in the interests of justice. The evidence however must be:

(i) capable of belief

(ii) afford a ground for allowing the appeal

(iii) must have been admissible at trial and

(iv) there must be a reasonable explanation for the failure to adduce it.

37. We first consider the appellant herself. Miss Forshaw relied upon what the appellant told us and all the surrounding circumstances which she claims support the appellant's account. A woman who was already suffering from depression or had done in the past was subjected to "serious violence" at the hands of Walters, as Miss Forshaw out it, and this was confirmed by contemporaneous police and medical records. Unfortunately we do not know what the medical records reveal because we were never shown them. All we know is that a year or two before the time with which we are concerned the appellant consulted her GP in relation to either depression or stress-related illness on one or more occasions.
38. We have received confirmation during the course of the hearing that she did suffer a miscarriage as she claimed in the summer before the importation. However, we do not know what caused the miscarriage and whether Walters may have been responsible as she now claims. At the time she does not seem to have made any mention of Walters punching her in the stomach.
39. We do have some assistance from the social services reports. They suggest that social workers had their concerns about the relationship between Walters and the appellant, given their duty to ensure proper protection of the appellant's child and unborn child. Both Coats and Walters admitted to social workers that they each had anger management problems and would antagonise one another to the extent that arguments would escalate into physical violence:

"Miss Coats and Mr Walters are in a tumultuous relationship which is marked by domestic violence. Miss Coats admitted that she had anger management problems and is often the instigator."

Miss Forshaw invited the court to put those comments into context and to have very much in the forefront of our minds the fact that those who suffer from domestic violence will not always reveal the true extent of it.

40. Mr Mullins, on behalf of the Crown, suggested that far from supporting the appellant's case the independent material established the appellant was not a battered woman as she claimed in the witness box but an angry, feisty woman, prepared to stand her ground and where necessary resort to physical violence. Her claims of domestic violence have gradually escalated, if one compares what she said to the CCRC on 4th October 2010 with what she went on to say to Dr Mezey a year later and now to this court. By the time she saw Dr Mezey, and before us, she was alleging for the first time incidents involving weapons, strangulation to the point of near unconsciousness and serious threats to her life. Dr Mezey has simply accepted those allegations as true and has considered them significant in reaching her conclusion without testing them in any way.
41. Yet, in her statement to the CCRC the appellant said that the first violent incident to occur was the incident when she was bitten by a dog on 15th July 2007. According to what the appellant told Dr Joseph this was the worst episode of violence she suffered at the hands of Walters.
42. Further, her contemporaneous accounts were very different from what she now alleges. She spoke to the police on four occasions between 15th July 2007 and 3rd October 2008, but none of these allegations surfaced at that time. In a statement to the police she described the incident on 30th May 2008 as "the worst so far". She told DC Goddard on 4th October 2008 that she lied when she said Walters attacked her, she slapped him. She also told DC Goddard that their relationship had been very much on and off over the past 2 years. Finally, in a statement to the family court in 2009 she insisted that it was not until a year into their relationship that she and Walters had their first physical fight.
43. It would be of interest, therefore, to establish when the relationship began and we have done our best. The closest we can get is the appellant's own evidence that she thought it was a matter of "weeks or months or possibly a year" before the importation, possibly 2006 or 2007.
44. Mr Mullins argued on that basis, she may not have been with Walters for very long before the importation, she may not have suffered much, if any physical violence by then, and her evidence before us that she had no choice but to get on a plane to Jamaica, spend 2 weeks there and then fly back with three suitcases full of cocaine was nonsense. He invited us to reject her explanation to this effect:

"I've been asked by the CCRC why I didn't simply say that I wouldn't go. My answer is that if I said 'no' I didn't know what he would do me. People not in my situation might find it difficult to understand why I didn't say 'no' but I knew what he was capable of."

He compared it to what she told Dr Joseph:

"When argued with him about not wanting to do it there was no arguing. He was at my house first thing in the morning. He made sure I had to go through with it."

45. Mr Mullins submitted there is nothing here which truly raises the defence of duress. At all times the appellant had a number of options open to her. She could leave or break off her relationship with Walters, as she had done or attempted to do in the past. There was no sufficiently cogent or immediate threat to her, her unborn child or her family to justify her involvement in the offence.
46. Miss Forshaw responded with the strong opinion of Dr Mezey. She was of the view that by the time the offence was committed the appellant was in such a state of passivity that she would have complied with anything that Walters told her to do. Therefore for her, there were no options. Dr Mezey also disagreed that the appellant could easily have informed the authorities in Jamaica or when she landed at Heathrow on her return. The threat from Walters was so bad that it was continuing throughout the two weeks away and her will remained overborne by her terror.
47. It is this last question upon which we have focused our attention: is there material here capable of belief, not simply that the appellant might have suffered domestic violence or from Battered Woman's Syndrome but might indicate that her will was overborne by terror of Walters?

Conclusions

48. We accept that the appellant may well have suffered a difficult and abusive childhood and that she may have suffered domestic violence at the hands of Walters. No child should have to witness what she claims to have witnessed or endured and no woman should have to suffer as she claims to have done at the hands of Walters.
49. However, fortunately not every woman who suffers from domestic violence goes on to suffer from Battered Woman's Syndrome. Not every woman who suffers from BWS can claim the defence of duress. It is essential to analyse, with some care, the extent and timing of the domestic violence, the impact upon the person concerned and their presentation at the relevant time. This may not be an easy task.
50. Stereotypical images of how one would expect a battered woman or man to behave or present may be counter intuitive. The court and the expert advising the court must bear very much in mind that battered women may be inconsistent in their complaints of abuse, they make complaints and wrongly withdraw them, they make no complaints at all. Their feelings for their abuser may range between anger, hatred, forgiveness, loyalty and love. They may not seek sanctuary when they should and could. They may perform acts which are out of character because they feel they have no options, albeit the objective observer might consider their options obvious. They may also put the safety of the children they love at risk. They may not react to a traumatic situation as an objective observer might react.
51. However, not every contradiction and inconsistency in their behaviour and accounts can necessarily be attributed to the illness and an accused would have to be suffering from BWS in a severe form to be in a position to claim their will was overborne. WE say at once, that however genuine Dr Mezey may believe the appellant to be, to our mind, she does not come close to establishing she may have been subjected to serious physical violence so bad that she had lost her free will, at any time, let alone before the importation.
52. Dr Mezey's sincerity was obvious. This is a subject in which she is not only passionately interested but in which she has considerable expertise. Her views are to be accorded considerable respect and not to be dismissed lightly. But, there are a number of difficulties with her conclusions.
53. She was confronted by an acknowledged liar, one whose accounts were inconsistent and one who had persuaded people, like her probation officer, that she was genuine and open when, unfortunately, she was the opposite. Yet, Dr Mezey has never acknowledged that fact and has never in truth subjected the appellant's accounts to rigorous analysis. In particular she has never focussed on what the appellant was like at the time of the importation. She has never tested the appellant's account against independent and contemporaneous records or even against the appellant's own accounts. Any inconsistency has been simply dismissed and attributed to the syndrome.
54. BWS normally results from "chronic and repeated abuse" but we find in Dr Mezeys reports and evidence, little or no detailed analysis of when Coats first began a relationship with Walters and how long this so-called severe and repeated abuse had lasted to justify the label chronic. Nor do we discover an analysis of which, if any, of the alleged incidents occurred before the offence.
55. We consider it significant that Dr Mezey did not, as Dr Joseph would have expected, challenge the appellant on how many things Walters had made her do against her will. She provided only one example (to Dr Joseph) when she claimed he made her go to the post office and give him her benefit. This does not suggest a woman subject to total domination. Nor did Dr Mezey question the appellant on why she obtained her passport in July long before she claimed she was forced into the enterprise by Walters, what happened between her obtaining the passport and the alleged force, and what happened between then and the importation.
56. Further, Dr Mezey has not revisited her conclusions in the light of the appellant's evidence and fresh material made available to the parties for the purposes of this appeal. The new material suggests the appellant may not have been telling the truth about the number of incidents before the offence and she was caught out in a number of obvious lies when she gave evidence. She made a totally unjustified accusation against Dr Joseph; suggesting that he had made an inappropriate remark and gesture during the course of their interview, displaying an extraordinary ability to fabricate and embellish when put on the spot. She was also totally incredible when she was confronted with the uncomfortable truth that she had applied for a passport many weeks before the alleged threat from Walters. Her explanation to us that she was going on yet another holiday paid for by yet another family of yet another friend (a variant of her evidence to the jury) was total nonsense.
57. We also bear very much in mind that her claims of violence at the hands of Walters appear to be getting ever more serious and have now reached the stage where she claims suffered violence on a daily basis before she went to Jamaica. Importantly also, the appellant could not explain and nor could the doctor explain on her behalf, her presentation on the mobile phone footage, dancing and joking in Jamaica and at the airport on the way home. There is absolutely no sign of the appellant being in fear and no sign of Blackstock controlling and supervising her. There is not a hint of a woman in a state of helplessness simply doing as she was told or putting on a front as Dr Mezey would have it. She is plainly a woman in control of Blackstock, not the other way round. She deliberately played the loud fool at the airport as a double bluff to distract a Jamaican police officer from the large suitcase containing drugs that Blackstock was at that moment placing on the scales at the check-in.
58. Unlike the probation officer and unlike Dr Mezey, we simply did not find the appellant credible. Accepting that she may have had an unpleasant childhood and that she may have suffered some violence at the hands of Walters, it was not of the kind that might raise the possibility of duress. She had a number of options. She never hesitated to call the police or seek help if she felt she needed it and was perfectly capable of leaving him when it suited her. She had her own home and her own resources. She was not isolated from her family and friends; indeed she assured us that her family were there had she needed money to lend her money. She shares virtually none of the characteristics that one would expect to see in a diagnosis or finding of Battered Woman's Syndrome.
59. We make every allowance for the fact that a battered woman may not report their abuser, may not reveal the true extent of their abuse and may withdraw complaints. However, the contemporaneous records of this woman, of her complaints of her dealings with the police and social workers simply do not paint a picture of an abused woman who is passive and suppressing her suffering and her fears. They reveal a woman with her own anger management problems, a woman prepared to stand up for herself with Walters and the authorities and who far from being isolated was in regular contact with friends and relations.
60. Accordingly, in our judgment, the whole factual basis for Dr Mezey's opinion and consequently Dr Dhar's opinion has been undermined. We detect no sign of this appellant being in a state of learned helplessness. We cannot accept that Dr Mezey's opinion provides a possible defence or indeed a cogent explanation for the failure of the appellant to raise duress at trial. She has been capable of speaking out when she has wished do so, and she has now been in a place of safety for very many years. Even without the considerable assistance of Dr Joseph, who did what an expert should do, which is test the assertions made against the available evidence, we would have reached the same conclusion.
61. We have not forgotten that the appellant has protested many times that she had no reason to exaggerate or lie because she does not care what happens to her. She has almost completed her sentence and will be released on licence in 10 weeks. She may have reasons as yet unidentified. Whatever the position, our approach remains the same. We are satisfied the evidence put before us does not suggest the appellant was suffering from Battered Woman's Syndrome or Battered Woman's Syndrome to the extent and degree that would afford her the possibility of running the defence of duress.
62. Had she wanted to run duress the time to do so was at trial. It would have to be an exceptional case for this court to entertain an appeal based on a completely different case advanced years later. Miss Forshaw has eloquently and valiantly tried to persuade us that this is an exceptional case. In our judgment it is not. Accordingly, we decline to accept the appellant's evidence as being capable of belief and find there is no reasonable explanation for advancing the defence at trial. We decline to receive it. Without her evidence, there is no basis for Dr Mezey's evidence and we decline to receive that also. The appeal must be dismissed.
(Submissions re: sentence)
63. LADY JUSTICE HALLETT: In the light of the judgment we have just given, Miss Forshaw has sought to renew the appellant's application for leave to appeal against sentence significantly out of time. She has argued that because the court has accepted the appellant may have suffered some violence at the hands of Walters, even if the evidence falls short of establishing that she suffers from Battered Woman's Syndrome , she is entitled to some reduction in the sentence that has been passed upon her.
64. The appellant was sentenced according to the guidelines that applied at that time: guidelines produced by this court as opposed to the Sentencing Council. At that time the range for an offence of this seriousness was 10 to 14 years. On the judge's finding that she was an organiser, she might have expected a sentence higher than that imposed. As it seems to us, therefore, the judge has already accorded the appellant as much credit as he can, given the fact that she contested her guilt. The judge has borne in mind that she was 24 at the time of sentence, of good character, the mother of two very young children, and pregnant with her second child.
65. For those reasons, we refuse what must be an application for an extension of time to renew and the application to renew the appeal against sentence.
66. MISS FORSHAW: May I simply correct my Lady on one point? It was an unusual case where the Criminal Cases Review Commission actually referred the matter so far as the sentence is concerned as well, so it is not on my application for leave.
67. LADY JUSTICE HALLETT: I apologise. Thank you very much.
68. MISS FORSHAW: It was the CCRC who took the view that both should come unusually before this court.
69. May I before my Lady rises - I know that it is late - may I raise the question of reporting in this case? There are reporters here and this is a case in which the two children and in particular J, the son of Chesham Walters, has been referred to on many occasions.
70. LADY JUSTICE HALLETT: The children must not be identified. I see everyone nodding. I think they knew that without my telling them.
71. MISS FORSHAW: Automatic I know. The difficulty in this case is that the tracing back of the murderer of the man by the name of Leandre would lead without question to the identification. May I simply make this request and it is that this case be reported by abbreviated initials?
72. LADY JUSTICE HALLETT: I am sorry Miss Forshaw, it is simply not appropriate. It is the children we have to protect and they can be protected by having their identities not disclosed. Are there any other applications? Thank you.