England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		29th November 2013

1. LORD JUSTICE ELIAS: This is an appeal against conviction and renewed application for permission to appeal against sentence. The only ground advanced with respect to the conviction appeal is a submission that the judge was wrong in law to refuse to allow a defence of duress to go to the jury.
2. Following that ruling the appellant pleaded guilty and was given a sentence of four years' imprisonment. This was for the offence of cheating at common law, although the single offence involved a number of different dishonest incidents.
3. It is unnecessary to set out in any detail the background to this offence. The appellant was sole director and shareholder of JCV Properties, a company that bought disused land with a view to obtaining planning permission and developing it. It was registered for VAT and over a period in excess of two years JCV's accountants submitted VAT returns at the behest of the claimant. The returns claimed refunds of VAT based on invoices provided by the appellant who had fabricated most of them. Nine of the false returns, totalling almost £675,000, were paid by Her Majesty's Revenue and Customs to JCV. The last claim was in excess of £96,000 but it was not paid because the fraud was discovered.
4. The appellant lived in Monaco but travelled regularly to the UK and had various bank accounts in both jurisdictions. The monies were used mainly for the appellant's business and personal expenditure. When the fraud was discovered, the appellant said to his accountants, "The game is up". He admitted making up the invoices and said he would repay the money. He answered no comment to all interviews. He did not raise the issue of duress until his defence case statement in April 2011.
5. At trial, he gave evidence about the alleged duress over many days. The gist of it was that he was in dispute with another man about a piece of land he had bought in Sutton for £14,000. He said that he was twice beaten up by men in Monaco who carried guns. They had demanded money from him and threatened him and his family with incidents of violence. He said this continued throughout the whole period of the indictment. There was another occasion when he had been visited in France and the assailants, the same as had originally attacked him in Monaco, had produced a photograph of his children and made threats in relation to them. It was at that stage that he produced the first false invoice which was submitted to Customs and Excise. He was given a mobile phone on which he was telephoned almost every day by a man named John. John frequently reiterated the threats, including on one occasion at least that his children would be tortured. At one point he told John that he would get a VAT rebate on property and John was very interested in that and later told him to make up invoices. He said the only monies he had actually paid to those threatening him were £10,000 a quarter. through an English friend, which allegedly constituted interest, and a lump sum of £200,000 in April 2011 after his arrest and interview.
6. The judge referred to the extensive evidence relating to this matter. There was also some evidence from other witnesses who lent support to his contention that he had been feeling unwell and had suffered certain injuries during the relevant period. In addition, the judge had before him medical evidence, which at that point had not been placed before the jury, and which suggested that the applicant was suffering from post-traumatic stress disorder.
7. The judge had to consider whether or not evidence of duress should go to the jury and he concluded that it should not. He summed up the relevant principles to be derived from the authorities in the following way:

"(unchecked) ... The requirements of a particular defence are that the threat relied upon has to have been one of serious injury or death, that the harm has to have been directed at the defendant, a member of his immediate family, or someone else close to him and someone whose safety the defendant reasonably regards himself as being responsible for. The defendant genuinely and reasonably has to believe that the threat, but for his compliance, will be carried out immediately or almost immediately, and the threat of a defendant's reasonable belief has to be the direct cause of the defendant's actions. The reasonable person in the defendant's situation would have been driven to act as the defendant did, the reasonable person being treated as being stable or ordinary firmness, of the same age and gender of the defendant but otherwise sharing his relevant characteristics. Of course it is agreed that there has to have been no action to evade the effects of the threat being available; in other words, if there were available to a defendant a reasonable course of action for him to take to evade the threat, he is expected to take it."

8. The judge applied this principle and concluded that in the circumstances, even if the appellant had been subject to the sustained and indeed terrifying attacks that he claimed, he had every opportunity to go to the police. As the judge noted, the appellant did not dispute that he had an opportunity to go to the police over the period of two and a half years during which time he had been coming backwards and forwards to this country. When asked the question why he had not gone to the authorities, he said:

"I did have the opportunity but there was no way that I was going to because of the threats that I was under, both to me and those close to me."

9. Applying the relevant principles, the judge concluded that there was no evidence from which a jury could find that he had acted under duress. He summarised his conclusions as follows:

" Reminding myself, as I must, as to what is required to raise in law the defence of duress, I have come to the view that it has not been raised. There is not sufficient evidence to amount to duress in this case. There was ample opportunity to evade the threats which the defendant says he was subject to. I also remind myself as to the particular offence of which the defendant is accused and the harm that was threatened of the defendant, which he tells us about, was not directed to him to commit this particular crime directly. This is not one of those cases where someone has a gun at someone's back and says 'commit this particular crime'. The defendant has, on his own account, resorted to committing this VAT fraud in an effort to raise money to pay others."

10. There are therefore two distinct grounds on which the judge felt that the case should not go to the jury: first, that there was ample opportunity to evade the threats, and, second, that the threat was not directing or causing the appellant to commit this particular crime.
11. The appellant now contends that the judge was wrong in this conclusion that duress was inapplicable and that he ought to have allowed the defence to go to the jury. Mr Stone QC, counsel for the appellant, submits that it is a highly unusual step to withdraw evidence from the jury in this way; it should have been for them to decide whether the appellant was overborne by the nature and extent of these threats. In that context he says the judge also ought to have considered the psychiatric evidence which was available to him.

Taking evasive action

12. We were taken to a number of authorities relating to the defence of duress, but in our judgment we need only refer to the speech of Lord Bingham of Cornhill in Z [2005] 2 AC 467, a judgment with which Lord Steyn, Lord Rodger and Lord Brown agreed. We focus first on passages which deal with the proposition that the defence is not available if a defendant could reasonably be expected to take evasive action. That proposition rests on what Lord Bingham identified as the sixth of seven limitations to the defence in paragraph 21 of his speech. He said this:

"The defendant may excuse his criminal conduct on grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take. It is necessary to return to this aspect also, but this is an important limitation of the duress defence and in recent years it has, as I shall suggest, been unduly weakened."

He then returned to the point at paragraph 28 and made it plain that the requirement should be very strictly applied:

"... 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."

13. In this context it is also helpful to note what Lord Bingham said in paragraphs 26 and 27:

"The recent English authorities have tended to lay stress on the requirement that a defendant should not have been able, without reasonably fearing execution of the threat, to avoid compliance. Thus Lord Morris of Borth-y-Gest in R v Lynch [(1975) AC 653], at p 670, emphasised that duress

'must never be allowed to be the easy answer of those who can devise no other explanation of their conduct nor of those who readily could have avoided the dominance of threats nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant.'

Lord Simon of Glaisdale gave as his first example of a situation in which a defence of duress should be available (p 687):

'A person, honestly and reasonably believing that a loaded pistol is at his back which will in all probability be used if he disobeys ...'

In the view of Lord Edmund-Davies (p 708) there had been

'for some years an unquestionable tendency towards progressive latitude in relation to the plea of duress.'

27. In making that observation Lord Edmund-Davies did not directly criticise the reasoning of the Court of Appeal in its then recent judgment in R v Hudson and Taylor [1971] 2 QB 202, but that was described by Professor Glanville Williams as 'an indulgent decision' (Textbook of Criminal Law, 2nd ed, 1983, p 636), and it has in my opinion had the unfortunate effect of weakening the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress. The appellants were two teenage girls who had committed perjury at an earlier trial by failing to identify the defendant. When prosecuted for perjury they set up a plea of duress, on the basis that they had been warned by a group, including a man with a reputation for violence, that if they identified the defendant in court the group would get the girls and cut them up. They resolved to tell lies, and were strengthened in their resolve when they arrived at court and saw the author of the threat in the public gallery. The trial judge ruled that the threats were not sufficiently present and immediate to support the defence of duress but was held by the Court of Appeal to have erred, since although the threats could not be executed in the courtroom they could be carried out in the streets of Salford that same night. It was argued for the Crown that the appellants should have neutralised the threat by seeking police protection, but this argument was criticised as failing to distinguish between cases in which the police would be able to provide effective protection and those when they would not. The Court of Appeal placed reliance on the decision of the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965. That case, however, involved a defendant who sought at trial to advance a defence of duress under a section of the Penal Code of the Federated Malay States which provided that, with certain exceptions

'nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence ...'

The appeal was allowed because evidence relied on by the appellant to show that he had had a reasonable apprehension of instant death was wrongly excluded. It is hard to read that decision as authority for the Court of Appeal's conclusion. I can understand that the Court of Appeal in R v Hudson and Taylor had sympathy with the predicament of the young appellants but I cannot, consistently with principle, accept that a witness testifying in the Crown Court at Manchester has no opportunity to avoid complying with a threat incapable of execution then or there. When considering necessity in R v Cole [1994] Crim LR 582, 583, Simon Brown LJ, giving the judgment of the court, held that the peril relied on to support the plea of necessity lacked imminence and the degree of directness and immediacy required of the link between the suggested peril and the offence charged, but in R v Abdul-Hussain [[1999] Crim LR 570], the Court of Appeal declined to follow these observations to the extent that they were inconsistent with R v Hudson and Taylor, by which the court regarded itself as bound."

14. Finally, it is also pertinent to note that in the course of his speech Lord Bingham referred to two cases in which he said the defence of duress should have failed for lack of immediacy since the threat was not to be executed immediately. In the case of Ali [1995] Crim LR 303 the appellant became involved in drug dealing. He said he had been compelled to rob a bank at the instigation of his supplier, who had threatened to kill him if he did not do so. The trial judge and this court both focused on the question whether he had voluntarily put himself in a position where he would be required to perform criminal acts and therefore could not rely upon duress. As Lord Bingham noted, the defence should in any event have failed because the threat was not to be executed until the following day, and therefore the defendant had an opportunity to take evasive action. He said the same about the case of Cole [1994] Crim LR 582, where again there was an opportunity for the defendant to take evasive action before committing the offence in question because the threat was not to be executed until the following day.
15. In our judgment, there can be no doubt that, applying these principles, it would extend the defence of duress well beyond permissible limits if we were to accede to this appeal. If the defence was not available to the teenaged girls in Hudson, and Lord Bingham made it plain that the Court of Appeal Criminal Division erred in overturning the decision of the circuit judge in that case, then we see no grounds at all on which it could apply here. The appellant could have gone to the police at any time over a period of two and a half years. Moreover, he was not placed under such fear that he was being forced immediately to pay John, the individual allegedly putting him in fear. That is not to say, as the judge pointed out in his sentencing remarks, that the appellant may not have been subject to some deeply unpleasant intimidation, but even he if his account was true in all the particulars, the appellant could not reasonably believe that the execution of the threat was imminent and immediate. The law requires a certain degree of fortitude to be shown by victims in circumstances such as these. The teenaged girls were no doubt in genuine and real fear of their safety in Hudson, but that was not a justification for applying the defence of duress because they had the opportunity to avoid complying with the threat. The CACD in that case had allowed its sympathy to distort legal principles. Were we to accede to this appeal, then even assuming that the account of the intimidation was true, we would be doing the same thing.
16. Given that in our view a properly directed jury could not possibly find the defence applicable, in our view the judge was right not to allow this matter to be left to the jury.
17. We agree with the observations of Laws LJ in the case of Bianco [2001] EWCA Crim 2516 at paragraph 15. He also was faced with a case where it was being contended that the issue of duress should have been left to the jury. The recorder ruled that it should not and the Criminal Division of the Court of Appeal considered her ruling to be entirely correct. It was urged upon the court, as it has been urged upon us today, that nonetheless the matter ought to have been left to the jury and that it was wrong for the judge to withdraw the defence because that was usurping the jury's function. His Lordship said this:

" It is important however to acknowledge the submission made by Mr Bell on the appellant's behalf that the ruling in truth usurped the function of the jury and therefore deprived the appellant of a fair trial or a proper trial in English law. He says that there should be no minimum evidential requirement for a defence to be left to the jury. It is certainly true that once a defence such as duress is left to the jury then it is for the Crown to disprove it to the criminal standard. In our judgment, if the case is one where no reasonable jury properly directed as to the law could fail to find the offence disproved, no legitimate purpose is served by leaving it to the jury. It is not generally within a jury's constitutional function to arrive at what ex hypothesi would be a perverse result in circumstances such as these. There must at least be some evidence upon which a jury could properly conclude the defence of duress had not been negative."

He went on to say that there was no breach of Article 6 in these circumstances.

18. We respectfully agree with that analysis. We were, however, taken to some criticisms of Bianco in Archbold, paragraph 17-125 of the 2014 edition. The authors suggest that it may have been wrong in that case for the issue of duress not to be left to the jury, and they add this:

" If there is evidence of duress, then the judge is duty bound to leave the issue to the jury. The fact that a judge may think that no reasonable jury could fail to find the defence disproved provides no justification for not leaving the issue to the jury."

19. We respectfully disagree with that observation and we note that it seems to be also at odds with the observation that Lord Bingham made about the case of Hudson. In Hudson the judge had withdrawn the case of duress from the jury. The Court of Appeal had held that that was wrong, but Lord Bingham indicated that in fact the recorder had been correct. We agree with Laws LJ that there can be no purpose in leaving a defence to the jury which the jury considering the evidence could not properly reach. Of course it is right to say that if there is evidence of duress then the judge is bound to leave it to the jury, but by "evidence" it must mean evidence which would in principle be sufficient to justify a jury concluding that the defence is established.
20. I should add that it was submitted that the judge had erred in not taking into account in his ruling the psychiatric evidence advanced by the relevant psychiatrist.
21. We think the short answer to that is that all counsel involved, and the judge, considered that this evidence was irrelevant at the stage at which the judge was considering whether or not the question of duress should go to the jury. We do not see how it could have had any bearing on the question of whether or not this defendant had the opportunity to take evasive action.
22. In the circumstances it is not necessary for us to consider the alternative basis on which the judge held that the defence should not be left to the jury, namely that the threat was not directed to causing him to commit this particular offence.
23. We then turn to the question of sentence. The judge in his sentencing remarks accepted that the appellant may have been subject to some intimidatory treatment. He referred to the fact that it was a serious offence and that it had taken place over a number of years. He specifically referred to the medical evidence that was before him and he said that he was, by analogy, having regard to the guidelines.
24. There are essentially two criticisms of this sentence, but it is not said that the judge's starting point was wrong. If one looks at the analogous guidelines in relation to fraud, the starting point would be five years for an offence of this nature and the range would be four years to seven years. But Mr Stone submits that the judge failed to give proper weight to the psychiatric evidence in particular, and also failed to give credit for the guilty plea.
25. We see no basis for saying that the judge failed to give proper regard to the psychiatric evidence, he referred to it, he had it before him and we have no doubt that he did take it into consideration. The contention has to be that he gave it insufficient weight, but we would not accept that submission.
26. The second ground is that the judge did not give any credit for the guilty plea. He did not specifically refer to the fact that he was giving such credit, but it must be remembered that this plea came extremely late in the day, three days into the trial, and therefore any credit would have been very small. If once looks at this sentence overall and compares it with the guidelines, as the judge did, then it seems to us it cannot possibly be said that four years is manifestly excessive given the amounts involved and the period of time over which these offences occurred.
27. Accordingly, we reject this application. We think the judge reached a perfectly proper sentence and there are no grounds on which it could be said to be manifestly excessive.