England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14th May 2010

1. THE DEPUTY JUDGE: This is the substantive hearing for judicial review by the claimant, who is a prisoner. Permission was given on the papers, on the basis that the grounds upon which he sought to rely are certainly arguable. The issue as agreed between the parties is a very short one.
2. The claimant was charged with being in possession, under the prison regulations, of a prohibited item, namely a mobile phone. His defence to that charge was that he had held it for another prisoner because he had been threatened by that other prisoner and feared for his safety. That issue was tried by a district judge, who heard evidence from the claimant and another prisoner, known as John Barber.
3. The district judge who heard the matter in April 2009 recorded, on handwritten sheets, the evidence which he heard, and also, in summary form the basis of his decision, whereby he found the claimant to be guilty of the offence as charged.
4. In recording the evidence of the claimant, the district judge recorded this:

"Feared I'd be assaulted. He [the other prisoner] was stood over me."

5. In respect of the evidence of Mr Barber, the district judge recorded as follows:

"He was a bit scared to hold the unspecified item. I went to speak to other people on his behalf. Said he had been threatened to keep hold of it. I asked them to take it back. They agreed to take it back once they'd found someone else to hold it. I know characters of the others. If he'd refused possibly, more than likely, they would have carried out threat."

In his summary of the judgment, this is written:

"Arguing duress of circumstance of person, of the very nature of the offence is a high threshold. What options did he have? 1, refusing to seek help. 2, hand it in. 3, do nothing and accede to the perceived threat. Not satisfied of the perceived and imminent level of threat being so serious, as to lead to substantial harm and there must be duty on him to demonstrate this on the balance of probabilities. There was a chance to seek another avenue and this duress is not available to him. He did have free will. Thus he is convicted on the evidence."

6. Mr Dixon, who has appeared on behalf of the interested party in this matter, has made four submissions in, if I may say so, a very realistic, effective and skilful way. He realistically and properly accepts that in referring to the standard of proof as that of the balance of probabilities, the district judge was in error. One only has to have regard to the authority of R v Z [2005] 2 AC 467, where the House of Lords considered the defence of duress to understand why Mr Dixon made that concession. Lord Bingham, in that authority, went through the history of the defence and had regard to a number of authorities in which it had been dealt with. In summing those up Lord Bingham made it clear that to found a plea of duress the threat relied on must be to cause death or serious injury, and that it was for the prosecution, once the evidence of a threat had been raised, to discharge the burden beyond reasonable doubt of showing that the offence was not caused by duress.
7. Despite that, Mr Dixon makes the following submissions. First of all, he agrees that the high threshold needed to bring home a defence of duress does not go to the question of burden. But, he says that in essence although the district judge had made an error in referring to the balance of probabilities, it is clear from his note of the basis of his judgment that he did properly consider the matter. Secondly, set out the number of options available to the claimant. He said, in terms, that he was not satisfied of the perceived and imminent level of threat being so serious as to lead to substantial harm. That, on the evidence, in my judgment, was an assessment which was open to him.
8. Thirdly, submits Mr Dixon, the district judge made clear that the claimant was convicted on the evidence. That includes the evidence of Mr Barber, which I have referred to. Finally, in sentencing the claimant to an additional 32 days of imprisonment for this offence, the district judge again made reference to the evidence, and indicated that whilst he could not exclude the possibility of threat, it did not surmount the high threshold needed for a defence of duress. That says, Mr Dixon, indicates that the district judge had that well in mind in convicting the claimant.
9. Despite the cogent way in which Mr Dixon has put these points, I am not satisfied that this is a conviction which can stand. I accept the points he makes. I accept the district judge does refer in terms to being satisfied of the perceived and imminent level of threat being so serious as to lead to substantial harm. As I have indicated, it seems to me that was a finding which was open to him on the evidence. However, in the same sentence, and with the conjunctive "and", the district judge then goes on to say that there must be a duty on him, that is a claimant, to demonstrate this on the balance of probabilities. Therefore, I cannot be satisfied that the district judge had in mind the burden being on the prison authorities to show that the defence of duress has not been made out.
10. It seems to me, as I indicated, that had the district judge proceeded solely on the basis of whether the evidential threshold had been reached, there would have been no reference to burden of proof at all. The very reference to the burden opens up the very real concern that an error of law did effect the conviction of this claimant.
11. For those reasons, in my judgment, it cannot stand. Both parties agree that that being so, the proper course for me is to remit the matter to be reheard by, again, and it seems to me, unless I have submissions to the contrary that it should be heard by a different district judge.
12. MR CONINGHAM: Just on the point of remission, I am not sure whether that would be a course I would necessarily be in agreement with. It has been quite a considerable period of time since the matter was dealt with.
13. THE DEPUTY JUDGE: I am sorry, I thought that was an agreed position.
14. MR CONINGHAM: I am sorry, I think I must have missed the point my Lord when you said that.
15. THE DEPUTY JUDGE: It was April 2009, was it not. Is the claimant still in custody?
16. MR CONINGHAM: He is.
17. THE DEPUTY JUDGE: This extra 32 days has not been served yet?
18. MR CONINGHAM: It has not, no, but it is stored up. I have absolutely no idea whether the witness relied on by the claimant would be available. I am not sure if the claimant is even in the same prison. I have not got that information today, but in my submission it would be, it would be quite difficult for him to present his case, after this passage of time.
19. THE DEPUTY JUDGE: The difficulty Mr Coningham is that I do not have evidence about this, do I? Would you like me to rise for a few minutes whilst you...
20. MR CONINGHAM: I am not sure whether I would be in a position to find out whether the witness was at HMP Frankland. I could certainly find out whether Mr Beever, the claimant, is there, but...
21. THE DEPUTY JUDGE: Can Mr Dixon help. Do you have information?
22. MR DIXON: I do not have any information other than that he was convicted of armed robbery in July 06 and sentenced to 14 years, so certainly still in prison at this time. Other than that, no.
23. MR CONINGHAM: All I can say, having dealt with a number of similar matters in the past, it is only my experience has been the days have been quashed. Clearly that is not based on any authority I have can point to. I think that would potentially be an argument as to the length of time that had passed. That could be deployed before the independent adjudicator. It would have to go back to the office of the senior adjudicator and then be reallocated and presumably at that stage, we would make submissions as to the practicality.
24. THE DEPUTY JUDGE: Quite. If there were circumstances, for example Mr Barber for some reason were not available, then there would be grounds for an abuse argument, would there not?
25. MR CONINGHAM: My Lord, yes. I do accept that that would be the case.
26. My Lord the only other issue is one of costs. I would ask that -- Mr Beever, the claimant, has been publicly funded throughout but I would ask that as the interested party has contested the matter that they be ordered to pay the claimant's costs. I would also ask for a legal aid assessment of the claimant's costs in any event.
27. MR DIXON: I have nothing to submit on that.
28. THE DEPUTY JUDGE: As to the first point, it seems to me that there is no evidence before me to suggest that there may be procedural difficulties in rehearing this matter.
29. If there were, Mr Coningham accepts that that might give grounds for an abuse argument before the judge, who will assess this issue again. But it seems to me that the right course is to remit the matter back for rehearing subject of course to any abuse arguments. That is what I do.
30. In relation to costs, again Mr Dixon realistically does not contest the application that the interested party should pay the costs of the claimant, which I order and I also order public funding certificate.
31. Is there anything else? Thank you both gentlemen for your interesting submissions.