England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/11/2017

Mrs Justice McGowan:

1. This is the judgment of the Court.
2. This is an appeal by way of case stated against the Appellant's conviction on 27^th October 2016 by the Ealing Magistrates' Court. She was convicted after trial of the followings offences:

i) Driving whilst disqualified contrary to s. 103(1)(b) of the Road Traffic Act 1988

ii) Driving having consumed over the prescribed limit of alcohol contrary to s. 5(1) RTA 1988

iii) Failing to stop when required by a Police Constable contrary to s. 163(3) RTA 1988

iv) Driving whilst uninsured contrary to s. 143 RTA 1988

v) Dangerous driving contrary to s. 2 RTA 1988.

3. All the driving complained of was admitted. The Appellant contended that she had driven as a result of duress applied by her partner, Daniel Powell. There was a history of violent conduct by her partner against her, some instances of which had come to the notice of the police.

CASE STATED

4. The questions for the opinion of this court were stated by the Justices as follows:

i) Was our decision to find the disclosure obligations had been complied with and so refuse a further adjournment Wednesbury unreasonable?

ii) Did we err in the application of the test of duress under R v Bowen 1996 2 Cr App R 157?

BACKGROUND

5. The Appellant was seen by police officers to be driving erratically on 8^th May 2016 at a branch of McDonald's in Ealing; her car mounted the kerb and was veering from side to side. The officer activated the siren and her vehicle drove off at excessive speed and in a manner causing potential danger to other road users. When she was stopped and taken to the police station, she was found to be uninsured, disqualified from driving and over the prescribed limit of alcohol. All this conduct was admitted. Following complaints made by the Appellant to the police she was also interviewed as a complainant in allegations of violence committed against her by Daniel Powell, who had been a passenger in the car at the time of her driving.
6. A statement served on her behalf in the proceedings set out a history of assaults against her by her partner. His conduct included threats made to her to kill her children. She stated that on the night in question he had been drinking and taking cocaine; that he had dragged her from her home partially dressed because he had wanted them to have sex in public. He forced her to drive to McDonald's and when the police car came into view he threatened to kill her if she did not drive on. She said he was screaming at her throughout, punching her in the ribs and trying to grab the steering wheel. She gave evidence that she believed he would kill them both if she did not comply with his demands. After these offences, she had continued to be assaulted by him. Mr Powell was arrested for assault on the Appellant on dates both before and after the driving offences.
7. Her defence was set out in a case progression form as "the Defendant will say that she acted under duress in that she had a genuine fear that if she did not do as instructed her ex-partner Daniel Powell would kill her or cause serious injury to her children. Duress is advanced as a general defence to all charges."

FIRST QUESTION: DISCLOSURE

8. Many applications for disclosure of further material relating to instances of violence were made both before and on the day of trial. The Defence were obliged to make repeated requests for information from the CPS to support the Appellant's account of the history of violence. Some of the material sought was not disclosed until the trial was underway. It is right, and conceded by the Prosecution, that the disclosure exercise was not conducted in a proper and timely manner.
9. On the second occasion the trial was listed for hearing, there was an application for an adjournment by the Defence. It was said to be necessary to remedy the deficiencies in the disclosure process to adjourn the hearing to allow for the service or disclosure of further material to establish the history of domestic violence in the relationship.
10. That application was resisted by the Prosecution which was willing to make admissions as to the violent conduct in the relationship and were still providing material in support of the Appellant's contentions. They tried to mitigate their failing by saying that the defence of duress had not been raised until proceedings were underway in a case progression document.
11. The Justices heard evidence and found that there had been a failure in the disclosure process. They refused the request for an adjournment as they found such failure had been remedied by late disclosure and by the Prosecution making admissions as to the history of violence relied upon by the Defence going to establish duress. They considered the Criminal Procedure Rules and each party's compliance, the over-riding objective, and the history of the case and disclosure.

SECOND QUESTION: DURESS

12. The Justices made the following findings of fact:

a) The Appellant had been involved in an abusive relationship with Mr Powell in which he exhibited controlling and coercive behaviour.

b) Mr Powell had a history of violent offences in the domestic setting.

c) The Appellant was shoved into a car by Mr Powell who had taken cocaine. She was wearing only a dressing gown and a pair of knickers.

d) Police attention was drawn to the car due to the manner of driving.

e) The car was stopped after a high-speed chase.

f) The Appellant drove dangerously to escape the police at the behest of Mr Powell although as the driver of the car she could have halted the vehicle.

g) The reason the Appellant drove at speed was because she believed if she did not Mr Powell might kill or seriously injure her. He was punching her and grabbing the wheel as she drove.

h) The Appellant did not tell police at the scene or at the police station that she was under duress.

i) The Appellant did not mention to her mother whom she phoned from the police station that she was under duress.

j) The Appellant had bought the car despite already being disqualified from driving and admitted in her ABE interview that she had driven whilst disqualified before this offence.

k) The Appellant admitted in police interview to consuming alcohol before driving and of being a disqualified driver.

l) The Appellant had not always reacted as a reasonable person would to threats made by Mr Powell in the past. On one occasion when Mr Powell had threatened to gas the house with her children in it, she had not responded to this threat and stayed at work.

m) The Appellant did not consider the specific behaviour of Mr Powell that led to these offences to be a serious incident in the context of many others.

n) We did not find that a reasonable person with the defendant's beliefs, history of domestic abuse, age and situation would have done what she did.

13. The Justices were referred to the case of R v Bowen [1996] 2 Cr App R 157 and the directions as set out in the Crown Court Compendium. They considered the history of abuse, her behaviour during the incident and later at the police station. They also considered her response to his behaviour in the past as set out by her in her evidence-in-chief and in cross-examination.
14. The Justices concluded that the Appellant had not reacted as a reasonable and sober person would. They concluded that such a person would have stopped the vehicle and told the police that they were acting under duress, that the issue had not been raised until after her first court appearance, that her own description of the incident was "not as bad as the others".
15. When applying the test for duress they considered all the evidence including how the Appellant had responded to the violent behaviour in the past. They reached the conclusion that she had not reacted as a reasonable sober person with the relevant characteristics would and found that duress did not apply. Accordingly the Justices found the case proved against her on each of the charges she faced.

ARGUMENT: DISCLOSURE

16. It was submitted on the Appellant's behalf that the Justices had acted so unreasonably in their refusal to allow the adjournment as to have acted unlawfully. Reliance was placed on the case of R v Swash [2009] EWHC 803 (Admin). In that case this court found that the failings to comply with the requirements of proper disclosure were so great that the refusal of the Bench to allow an adjournment was unreasonable.
17. It was argued that the Appellant had raised the issue at the first opportunity and that her defence statement had been served in good time.
18. The Respondent accepted that the disclosure exercise had not been properly conducted and apologised. However, it was submitted that, although late, disclosure was eventually completed and that to remedy the problem that some material had been disclosed late, admissions were made by the Prosecution. In any event it was a matter of discretion for the Bench who were satisfied that the Appellant could have a fair trial.

ARGUMENT: DURESS

19. The Appellant submitted that the Justices were wrong to conclude that a reasonable person with her relevant characteristics would not have reacted to the violence used or threatened and they wrongly applied the law to the facts as they found them to be. It was argued that the Justices wrongly applied the test as set out in R v Bowen (supra). It was submitted that R v Bowen does not provide a closed list and that the Justices should have imported the test of a woman subject to domestic abuse. The decision-making process of the Bench was criticised because they applied a subjective element to the objective part of the test, in that they looked at her reactions on earlier occasions to his threats. Reliance was placed on the case of R v GAC [2013] EWCA Crim 1472. It was accepted that there was no issue of a recognised condition, such as "learned helplessness" in this case.
20. The Respondent submitted that the Appellant did not argue how the authorities cited were misapplied. She argued that the Justices were directed by agreement between the parties on the application of the principles in R v Bowen and the steps to be followed in their application as articulated in the Crown Court Compendium. She submitted that the Justices found for the Appellant on all the subjective elements of the test of duress; further that in their application of the objective element of the test the Justices did err but in the Appellant's favour and applied a more favourable test by the combination of a further subjective element with the objective test.

ANALYSIS: DISCLOSURE

21. The failure to comply with the duty of proper disclosure on a proper timescale was only remedied by last minute provision of material and an acceptance of admissions. That should not occur. However, the proper sanction for such delay is not to allow appeals against findings of guilt, if those findings are properly based on a consideration of all relevant and admissible material.
22. This court in R v Swash allowed the appeal because the issue in that case was only the credibility of witnesses and disclosure had not been complied with in a way that meant that the court could not be satisfied that the outcome might well have been different had it been done properly. In this case the delay could be and was remedied. There are instances in which the trial process can remedy delay in service or disclosure. Further all the findings of fact that the Appellant contended for were made in her favour.
23. The grant or refusal of a request for an adjournment involves an exercise of discretion on the part of the tribunal. This court will not interfere with such an exercise of discretion unless it can be shown that no reasonable tribunal would have found in that way. The Appellant has not shown that the Justices so erred in this case. Accordingly, the answer to the first question is "No".

ANALYSIS: DURESS

24. The test in R v Bowen is well established. The test must be strictly applied; per Stuart-Smith LJ, "As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness".
25. The Justices set out the findings of fact that they had reached and their application of the test. There was no evidence of any recognised medical condition, as in R v GAC.
26. They found that she had behaved in the way in question because of the threats and actual violence used. That was open to them on an application of the subjective elements of the test to the facts as they found them to be. They included in their considerations the events of the night in question and the history of the relationship.
27. They were then required to apply the objective element of the test as set out in R v Bowen at 166 D et seq:

i) 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.

ii) 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 women 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.

iii) 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 ... .

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

v) 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 … .

vi) …

vii) 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 … . 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 the characteristics in question to these.

28. A strict application of the principles in R v Bowen would have meant that they only considered the Appellant's age and sex. In fact, they adopted a test more favourable to the Appellant and also considered her personal history of domestic abuse. Even taking that background into account, they found that a reasonable person having experienced violence and threats which, on occasion, had not always been carried out, would not have acted as the Appellant did. A modified form of the test was applied adding a subjective element to the objective test. If there was an incorrect application of the law it was in the Appellant's favour.
29. A proper application of the test in Bowen should have caused the Justices to ask themselves the following questions. 1. Did the Appellant behave in the way she did on the night because she believed her partner would seriously assault or kill her because he had behaved in that way in the past? 2. Would a reasonable woman of her age have responded to those threats in that way?
30. Accordingly, in so far as the Justices misdirected themselves it was in the Appellant's favour. The Justices' second question should be amended to be: Did we err to the detriment of the Appellant in the application of the test of duress in R v Bowen [1996] 2 Cr App R 157?; the answer to which is "No".
31. The appeal is dismissed.