An Chúirt Uachtarach
The Supreme Court
Clarke CJ
MacMenamin J
Charleton J
O'Malley J
Finlay Geoghegan J
Supreme Court appeal number: 2017 no 000024
[2018] IESC 000
Court of Appeal record number: 2014 no 34
[2016] IECA 332
Circuit Criminal Court bill number: 2010 KE67
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Appellant
- and -
Trevor Gleeson
Accused/Respondent
Judgment of Mr Justice Peter Charleton on Thursday 1st of November 2018
1. This appeal concerns duress as a defence to a criminal charge. It emerges in this way. The accused Trevor Gleeson was a prison officer in the Midlands Prison when, on 22 December 2009 in Kildare town, he was found by gardaí to be in possession of €6,000 worth of various controlled drugs. While charged with both possession for the purpose of supply and possession, he was convicted of simple possession only at Naas Circuit Criminal Court in December 2012. The jury disagreed on the counts of possession for supply, which were in respect of such controlled drugs as benzylpiperazine, diamorphine and cannabis. In July 2013, a subsequent trial on those counts ended in the jury being discharged because of the late disclosure of video footage from a supermarket three months after the accused had been found in possession of the drugs. He was not subsequently tried on the possession for supply counts. Thus only the conviction for simple possession is in issue. On his arrest, Trevor Gleeson maintained to the detectives who interviewed him that he had been in possession of the drugs solely due to threats and intimidation from criminals at his place of work and from their associates outside the prison. The sentence imposed by the trial judge on 31 January 2013 for simple possession was 18 months' imprisonment suspended for three years.
2. Trevor Gleeson appealed his conviction. The Court of Appeal overturned the conviction on grounds related to the adequacy of the trial judge's charge as to reminding them of his occupation as a prison officer and as to the directions given to the jury on the defence of duress. What this judgment is concerned with are the subjective and objective elements of the defence. By determination of this Court, dated 6 December 2017, leave to appeal from the judgment and order of the Court of Appeal was given to the Director of Public Prosecutions on this issue:
Where an accused person seeks to rely on the defence of duress, by what standards are the accused's actions to be judged? In particular, should their actions [be] judged according to i) an entirely objective test; ii) an entirely subjective test; or iii) a test which includes both an objective and a subjective element?
Background
3. On 22 December 2009, Trevor Gleeson was observed parking his car at Lourdesville, a residential part of Kildare town. A convicted criminal, known to the gardaí, was seen getting into the passenger seat. Both men drove together for a short distance and then the passenger got out. Gardaí followed the car. As they did, a plastic bag containing drugs was thrown out of the car by Trevor Gleeson. The car was then stopped and he was arrested. Under questioning, he asserted the defence of duress; that his possession of the drugs in the bag only occurred because of serious threats from criminals inside the Midlands Prison and from those on the outside. The task imposed on him through duress, he claimed, was to supply controlled drugs to particular inmates of the prison. He asserted, nonetheless, that at all times he intended to dump these particular drugs rather than take them into the jail and supply them to prisoners.
4. In so far as any encounter captured on closed circuit television in a supermarket on 29 March 2010, three months later, might be relevant, this wordless image simply shows a brief discussion taking place between Trevor Gleeson and two men. These individuals, he claimed, were part of the several people previously intimidating him. These individuals apparently had criminal convictions. A prison officer may not, perhaps, be immune from the exchange of words with those whom he had once known in a professional setting. As to the detail of how he asserted he was acting under duress, Trevor Gleeson claimed during police interviews to have been approached some months prior to the incident that led to his arrest in December 2009. He asserted that he had at that time received a parcel for transmission to the prison on a promise of money but, instead, had dumped it. He had no idea, he claimed, why he of all the staff in the prison had been approached to smuggle drugs into the prison. He had not reported any of these threats to the gardaí or to the authorities in the prison because, as he told detectives, referring to his superiors, "they wouldn't ever listen to you." That earlier incident of possession, which did not lead to detection and with which he was not charged, was again put down by him to intimidation. His state of mind as to the drugs for which he was arrested in December 2009 was explained by him to the interviewing officers as follows:
I have been followed home, been intimidated by people from Limerick both inside the prison and outside. It's going on months, being pressured and pressured and being followed. I don't know why I agreed to meet this lad tonight and get it and throw it in a bin. That was basically it. And this man came in behind me [the detective]. I knew obviously what was in the bag, I knew it was drugs; I threw it out when this man came in behind me. … He saw I was petrified when I got out. I don't know why I agreed to meet him tonight. I was afraid for my family, and now I will have no family. … they are the most dangerous criminals from Limerick. Being followed is not a nice thing. … I never touch drugs. I just did it to get my family out of it, out of their lives, when certainly criminals are telling you that there are people looking for you inside the prison. … I am a nervous wreck. I can't sleep.
Judgment of the Court of Criminal Appeal
5. The trial judge had asked the jury to consider the defence of duress on the basis of what "a reasonable person, being a sober person of reasonable firmness of the accused['s] age and gender … would … have done in the circumstances?" She clarified that by posing this test: "Would he have felt compelled to act in the manner in which he did?". There were also directions as to the immediacy, or not, of any threat under which the accused Trevor Gleeson claimed to have acted.
6. While one ground of appeal to the Court of Appeal claimed an error by the trial judge "in instructing the jury as to how they deliberate in respect of the defence of duress", in point of fact, the rationale for overturning the conviction, at paragraphs 26 and 27, was for an alleged failure on the part of the trial judge to point out, when dealing with the defence of duress, that the jury should take into account that the accused was a prison officer and that prisons were dangerous places:
In the view of this court, the appropriate test to determine whether the duress complained of is sufficient to acquit an individual of a criminal act attributed to him is neither entirely subjective or entirely objective . It has to include an element of both, as it needs to take into account the particular circumstances of the person seeking to invoke the defence. For example, a wealthy person capable of moving himself and his family out of the jurisdiction to avoid threats made against him and his family should not be entitled to benefit from the defence of duress in the same way as somebody without the means to escape. Some people will be, because of their individual or personal circumstances, more vulnerable to duress, than will others. It is reasonable therefore that a jury should consider allegations of duress in the context of the individual and personal circumstances of the accused person.
Accordingly, it was appropriate for the learned trial judge to incorporate into her charge to the jury a requirement that the jury would consider the defence of duress on the basis of what the appellant, as a prison officer working in a prison inhabited by dangerous criminals ought to have reacted to the threats made against him in those particular circumstances. Her failure to do so constitutes an error of principle. It may well be the case that the appellant … as a prison officer, used to dealing with criminals on a daily basis, ought to have been better able than most to have withstood such threats. Equally, it is arguable that a prison officer, because of his work, might feel particularly vulnerable to such threats. It is, however, a matter for the jury to consider which is the case in the circumstances as presented to it.
7. It must however be pointed out that everyone knew that the accused was a prison officer. That was what the entire case was about: him, his work, the people he met there and the pressure he claimed he was put under to import drugs into a centre for the rehabilitation of convicts. It is not part of the function of a trial judge to repeat what is obvious. Counsel for the defence and counsel for the prosecution had both approached their arguments on the premise of the pressures under which the accused worked by virtue of his post, on the one hand, and on the other, the basis of his responsibilities and ability to seek the help of State authorities if genuinely worried.
Directions by a trial judge
8. The general duty of the trial judge in charging a jury is to explain concisely their respective roles, the burden of proof, and the elements of the offences faced by the accused. A succinct but accurate summary of the main evidence and arguments on both sides should follow and it is desirable to refer to such areas of contradiction between witnesses as are essential to the resolution of the case, together with an explanation of facts and inferences and the duty of the jury to only draw inferences that arise beyond reasonable doubt. While the trial judge should put the prosecution and defence cases and is entitled to comment on these, a judge should not enter into advocacy when expressing a view and should make it clear that the jury is the tribunal of fact unfettered by any apparent opinion expressed by the judge, save for directions on points of law. Any warning especial to the case or any explanation of any defence on which there is sufficient evidence for a jury to reasonably act should also be given. On this, see generally Attorney-General v Murray [1926] IR 266, R v Lawrence [1982] AC 510 per Lord Hailsham LC, Coonan and Foley - The Judge's Charge in Criminal Trials (Dublin, 2008) chapter 2, and Archbold - Criminal Pleading, Evidence and Practice (66th edition, London, 2018) paragraphs 4-430 to 4-444.
9. In that context, it should be commented that the duty of counsel for the prosecution and the defence is to argue their respective cases. It is not the duty of the trial judge to contend for any particular scenario, nor is there a requirement to reiterate what is obvious. Moreover, since the trial judge has seen all of the case and must be presumed to have an appreciation of the building blocks of what the prosecution allege and how this is countered by the defence, or any evidence the defence may give, the judge is entitled to a measure of appreciation as to the manner in which it is felt right by him or her to approach directing the jury.
The origins of duress as a defence
10. Duress in criminal law exists as a concession to human infirmity. When faced with a threat unless some crime is committed, some immensely courageous persons may opt for their own death rather than to break the law. Fewer indeed would allow the death of their family instead of being party to some lesser form of crime, such as theft. But, even still, all are obliged to obey the law. That is why prohibitions, on pain of criminal sanction, exist. In 1933, commenting on the defence of duress, Murnaghan J noted that even someone with the experience of the criminal law as Sir James Fitzjames Stephen had never personally dealt with a case in which that defence was pleaded, and he further stated that there had been no reported case on the matter in then recent years; AG v Whelan [1934] IR 518. Since then, the authorities, and resulting academic commentary, have burgeoned. Many of the relevant decisions and texts have been argued on this appeal. Within academic writing on duress, it been noted that with the increasing organisation of individual criminals into gangs and with the rise in drug dealing, the defence is increasingly popular and now often pleaded; see Smith and Hogan's Criminal Law (14th edition, London, 2015), paragraphs 12.2 to 12.3 and Fairall and Barrett - Criminal Defences in Australia (5th edition, 2017), chapter 8.
11. While the distinction between offences which are justified by a defence, such as the lawful use of proportionate force in response to an attack, and those which are excused, of which duress is one, no longer remains of practical consequence, the experience on which a defence was founded through the development of the common law remains important. In AG v Whelan , Murnaghan J analysed the defence of duress on the basis of principle. In the facts of that case, the accused, "under violent threats", accepted into his possession some stolen silver coin from a theft carried out on a train by a dangerous criminal. On the duress being raised as a defence at trial, the judge asked the jury a question in this form: "In receiving the money did Peter Whelan act under threat of immediate death or serious violence?" to which they answered "Yes". Since this answer by the jury also amounted to a finding that the accused had received stolen property, the trial judge entered a conviction, but he mitigated the sentence imposed by suspending it. The accused appealed his conviction. The Court of Criminal Appeal reasoned that duress operated as a defence in the circumstances accepted by verdict of the jury. Murnaghan J defined the elements which would establish duress as excusatory of a crime thus:
It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.
12. This classic statement of the law has since been followed or referred to in a multiplicity of cases in common law jurisdictions. Most recently, this Court rejected duress as a defence to murder in Dunne v DPP [2017] 3 IR 1, substantially on the basis of the correctness of the reasoning in that decision.
Duress and intention or recklessness
13. While the language of Murnaghan J in AG v Whelan might at first glance seem to require duress to negate the mental element of any offence charged, so that the accused no longer intended or was reckless as to the criminal behaviour alleged, this would be to misread the decision. In duress, the accused will intend to steal or to import drugs, but that conduct is excused because of a superior will bearing down upon him or her as a compulsion to commit the crime. The 1922 edition of Archbold - Criminal Pleading, Evidence and Practice (26th edition, London, 1922), page 21, gives examples of duress which indicate a situation where the external element of the crime was not in fact perpetrated by the accused; as where a man takes the hand of another holding a knife and plunges it into the victim. In such a case of the overbearing by another of the physical power of resistance of the accused, the ostensible perpetrator of the offence is blameless. That may be both as to the external element of the crime and as to the mental element. A person can be used by another as an innocent instrument of crime. In effect, a person can be used as a weapon. The example given in Archbold is perhaps unlikely, since once a person holding a knife is subject to an assault, the normal reaction would be to resist. To take a different example, a person climbing a stairs might be subject to a sudden malicious push, falling backwards and so injuring the person behind them intended to be assaulted by an individual using their body as a weapon of assault. Similarly, someone driving a car might be shoved by their passenger so as to collide with a pedestrian or another car. In those cases, any intent to injure or any recklessness as to whether injury might result from those actions would be absent. The person manipulating them would, instead, be the guilty party. That would be both in relation to the external element of the offence and the mental element.
14. The defence of duress is not concerned with the manipulation of physical force through using another person as an innocent instrument of crime. The reality of duress is a concession to the kind of pressures and circumstances which can leave a person of ordinary firmness of will feeling that they have no option but to act under the direction of a criminal in the commission of a crime. This would be something that they did not want to do, but had to do, and would never have embarked on but for an unavoidable intrusion of criminal demand into their lives. Thus, the defence is not so much a concession to human weakness, since, as Murnaghan J comments, operative overpowering of a person's will at the time of the commission of the crime is required such as to overbear the ordinary power of human resistance. Further, the decision in AG v Whelan requires that there be no time for the will to reassert itself, which modern analysis suggests relates to opportunities by the person under duress to access the protections of civil society, through the police or other authority.
15. In modern Irish society, we are far from unfamiliar with how any ordinary civic-minded thought of resistance to a criminal scheme may be overcome. It has happened that a bank manager arrives home to find his domestic tranquillity shattered by the presence of armed men. If he is then told to proceed to the bank with the men's accomplices and to hand over money when a time lock disengages, no right-thinking person would consider a theft charge against the bank manager appropriate. Similarly, guns pointed at customers in a bank raid that result in tellers handing out cash to robbers means that their conduct could in no sense be regarded by any reasonable standard as theft. One does not become a party to a crime by being coerced into a crime through being overborne by duress.
16. As the examples of kidnapping by invasion and cooperation through armed coercion illustrate, the individual circumstances whereby duress is claimed to be applicable are crucial to the validity of the defence. But, because a claim of coercion is easily made and because organised crime and paramilitary subversion, once participated in by joining or associating with a gang, in itself typically disciplined through coercion, the defence of duress must be circumscribed so as to exclude volunteers to violent criminal enterprise. Duress as a defence must be defined in such a manner that it does not become a handy excuse for conduct which the law proscribes.
Duress and the burden of proof
17. Every defence fits within the scheme as to the burden of proof applicable to it. To a large extent, the rules as to the burden and standard of proof have been set by experience, but legislation may also set down rules. In insanity and in diminished responsibility, the burden of proof is on the defence to clearly demonstrate such infirmity of mind at the time of the commission of the offence; see The People (DPP) v Heffernan [2017] 1 IR 82. In other instances, the legislature has intervened; as in defining the elements of the offence of possession of controlled drugs and in placing the burden of defence on an accused who is proved to be in possession of a controlled drug to prove that "he did not know and had no reasonable grounds for suspecting … that what he had in his possession was a controlled drug … or … that he was in possession of a controlled drug"; section 29(2) of the Misuse of Drugs Act 1977 .
18. Within that particular statutory scheme, the burden cast on the accused is to prove a reasonable doubt; The People (DPP) v Smyth [2010] 3 IR 688. The burden of proof in the defence of duress is that generally applicable to defences. That burden was explained in the context of the justificatory defence of the lawful use of force by Walsh J in The People (AG) v Quinn [1965] IR 366 at 382 thus:
When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury. In such case the burden rests on the prosecution to negative the possible defence of self-defence which has arisen and if, having considered the whole of the evidence, the jury is either convinced of the innocence of the prisoner or left in doubt whether or not he was acting in necessary self-defence they must acquit.
19. Since, however, acquittal on a criminal charge is on the basis of the prosecution not meeting the standard of proof beyond a reasonable doubt, a defence may only be left for consideration by a jury if it actually arises on the evidence. Once there is some evidence capable of raising the issue, the persuasive burden of disproving a defence is on the prosecution; see Taiapa v R (2009) 240 CLR 95 and Fairall and Barrett, paragraphs 1.73-1.74. A defence should not be left to the jury if there is no reasonable basis to support it, such as where it is either asserted speculatively or without foundation in the evidence. There must be some evidence whereby a defence such as duress may be left to a jury. The mere assertion of a defence does not mean that there is sufficient evidence requiring the jury to consider it. As Walsh J stated in the same passage at pages 382-383: Before the possible defence can be left to the jury as an issue there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the defence. In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds. In directing the jury on the question of the onus of proof it can only be misleading to a jury to refer to "establishing" the defence "in such a way as to raise a doubt." No defence has to be "established" in any case apart from insanity.
20. To that exception of reversed burden in insanity might be added such statutory exceptions as reverse, or partially reverse, the burden on the prosecution of disproving a defence; see generally Glanville Williams - The Proof of Guilt: A Study of the English Criminal Trial (London, 1963), pages 184-186. Other common law systems have the same or a similar approach.
Duress as a convenient excuse
21. Every defence in criminal law comes with restricting requirements and conditions. As Ashworth notes, these are based on both experience and on the strong social arguments which require a balance in the law on the basis of what is right and fair from the point of view of both society and the accused; see Ashworth - Principles of Criminal Law (4th edition, Oxford, 2003), pages 250-252. How a defence will work in practice is of the essence in testing its consequent effect upon the legal prohibition which it seeks to nullify. In duress, the element of compulsion by criminal interlopers strikes against the compulsion that those living in society are under to respect the law by not infringing its prohibitions. It is easy to assert that a crime was committed under duress either in a statement to the police upon being arrested, or through evidence at trial. In a police statement, the material cannot be tested by cross-examination of the accused and the circumstances of self-excuse may evoke scepticism in a jury. Where the accused gives evidence and is subject to cross-examination, the law rightly regards that category of testimony as potentially carrying more weight than a mere document. But, even there, as with a person arrested at Dublin Airport for carrying drugs or firearms into the country, there may be assertions about duress that are beyond testing. The person may assert a danger to family in a far-off country by people that apparently can only be described less than precisely. Rather than break the law, the question might be asked in these rather typical circumstances, why not have resort to the authorities for protection? However, these may be less than ideal in some particular countries of origin; and that is hard to probe by cross-examination.
22. There are strong dangers to weakening or dissolving the elements of the defence of duress as described by Murnaghan J in AG v Whelan . Of course, fundamental to any defence is that the accused, in asserting the defence, must be found by the jury to be genuine. This means that the jury must be either convinced of the innocence of the accused or left in doubt as to whether he or she was acting under duress. He or she must actually, in their own mind, be under compulsion. This is a subjective test. That is easily explained to a jury: to assert a defence requires that it be invoked honestly. Without proscribing this as a rule, it can be that the jury can usefully be reminded of this subjective element. Scrutiny of any defence can only begin when it is regarded as being genuinely operative on the mind of the accused at the time of the commission of the offence. One of the key elements whereby the defence of duress is designed to operate fairly is in the elements of reasonableness of response to the threat, proportion, and the requirement that a person in the circumstances of the accused should exercise reasonable firmness and courage, rather than make themselves party to a crime on another or on society. The reason for these elements is explained in compelling terms by Fairall and Barrett at paragraph 8.25 of Criminal Defences in Australia thus:
Where a person seeks to avoid criminal responsibility on the basis that he or she had no choice but to commit an offence by reason of duress, the claim is assessed on an objective standard. Were it not so, criminal responsibility would be determined by the lowest common denominator and the law would lose all credibility. Indeed, a person motivated by an exaggerated sense of threat or danger would be exonerated, while a person of greater sense or fortitude would be accountable. The law may well provide some respite or compassion for the timorous or the weak, but only up to a certain point. At common law and explicitly under the various statutory provisions (with the exception of Tasmania) there is a requirement of reasonableness in the assessment of duress. The behaviour of the accused is judged both by the reasonableness of his or her beliefs, and the appropriateness of the response.
23. Other academic authority rightly supports the need to circumscribe the defence of duress so that it retains a sense of reality. Claims of acting under duress are peculiarly difficult for the prosecution to investigate and, hence, potentially disprove beyond reasonable doubt. Professor John Smith has pointed out that "duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for the prosecution to investigate or subsequently to disprove"; commentary on R v Cole [1994] Crim LR 582 at page 584.
Duress and reasonableness
24. Any defence in criminal law which entirely depends on what the accused claims to be his internal mental, or in other words subjective, viewpoint is anomalous. The only such defence in Irish law is that of provocation, which may reduce a charge of murder to manslaughter if accepted. As was commented by the Court of Criminal Appeal in The People (DPP) v Curran [2011] IECCA 95 on the leading decision of The People (DPP) v MacEoin [1978] IR 27, there may be problems associated with this defence that may merit a fresh analysis. Jurisdictions which are based on a criminal code harmonise with the common law on the defence of duress in universally requiring elements of objectivity to circumscribe the applicability of the defence. For instance, the codes of Victoria, the Australian Capital Territory, the Northern Territory and Western Australia all provide for a defence of duress where a person carries out what would otherwise be a crime but only under highly constrained circumstances; see Fairall and Barrett, paragraphs 8.3 to 8.7. Duress is only available as a defence to an accused on three conditions which are based on reasonableness. These are that:
25. Duress operates on the will of the subject, constraining choice through the overwhelming compulsion of threat that puts a greater evil in the way of the accused. Hence, in terms of circumstance, it can be excused by society for a person to engage with those who impose their will on the accused whereby a worse event is forestalled. That is the essence of the defence. But, that defence is not there to be available as a ready excuse. The essence of the defence is the placing of the accused in circumstances that offer no reasonable choice. Since the law regulates society and requires the adherence of all who live within the rule of law, the circumstances of the constraint, how the constraint came about, and the availability of resort to other avenues apart from breaking the law, place boundaries to the deterioration of social structures. Speaking of breaking the law due to an overwhelming necessity, and specifically referencing the need to throw goods overboard in a storm, it is noteworthy that Aristotle in Nichomachean Ethics (Book III, chapter I) analyses the excuse of constraint by reference to objective factors:
For such actions men are sometimes even praised, when they endure something base or painful in return for great and noble objects gained; in the opposite case they are blamed, since to endure the greatest indignities for no noble end or for a trifling end is the mark of an inferior person. On some actions praise indeed is not bestowed, but pardon is, when one does what he ought not under pressure which overstrains human nature and which no one could withstand. But some acts, perhaps, we cannot be forced to do, but ought rather to face death after the most fearful sufferings; for the things that 'forced' Euripides Alcmaeon to slay his mother seem absurd. It is difficult sometimes to determine what should be chosen at what cost, and what should be endured in return for what gain, and yet more difficult to abide by our decisions; for as a rule what is expected is painful, and what we are forced to do is base, whence praise and blame are bestowed on those who have been compelled or have not.
26. Some modern authorities split up the elements of what consists of the excuse of duress into particular sub-rules, as in a criminal code. The essence of the defence, however, remains the overwhelming nature of threat in the circumstances in which the accused is constrained and the absence of any reasonably available resort to lawful conduct. Thus Lord Bingham in R v Hasan [2005] 2 AC 467 at paragraph 21 lists the elements of the defence as requiring: a threat of death or serious injury; the threat must be directed against the defendant or his immediate family or someone close to him or her, or to someone for whose safety the accused reasonably considers himself or herself responsible; the perception of the threat and the accused's response are to be reasonable; the criminal conduct sought to be excused by the defence of duress must result directly from the threat; no evasive action may be available to the accused; threats voluntarily laid on himself or herself by association with a violent grouping are inadmissible; duress is no defence to murder; see also Smith, Hogan and Ormerod's Criminal Law (15th edition, London, 2018) at pages 346-347.
27. The Law Reform Commission view of the law, as opposed to any recommendation, in their Report on Defences in Criminal Law (LRC 95-2009) at paragraphs 5.31-2 endorse the excusatory nature of the defence and state that the "features referred to by Lord Bingham in R v Hasan should be incorporated into the defence". These are summarised succinctly in a manner which reflects the existing law as:
… the defence should include that the threat was imminent, there was no reasonable way to avoid the threat or make it ineffective and the conduct was a reasonable response to the threat.
28. There are no relevant authorities which propose that, judged by objective standards, anything less than an ordinary standard of resistance to the threat to the accused can ground the defence of duress. Further, there are no authorities which support the proposition that the accused may act on a fanciful notion that a threat exists. Rather, the law does not depart from the analysis of the Law Reform Commission and the summary of their recommendation at paragraph 5.58: … the belief in the existence, nature and seriousness of the threats should be reasonably held and … the test should be what an ordinary person with the accused's characteristics would have reasonably believed in the circumstances.
Characteristics of the accused
29. Circumstances of constraint will vary from situation to situation. Herein, there has been reference to a bank robbery with threats of violence leading to the surrender of money and to tiger kidnapping forcing the custodian of money to travel with other of the criminal accomplices to hand it over. Such circumstances are like the storm to which Aristotle refers; without jettisoning the property of another, the ship would sink and lives would be imperilled. For the defence to have any valid foundation, such circumstances must either actually have existed or the accused must reasonably have believed them to exist. In every such situation, the issue becomes the human reaction to threat within the context in which the threat is proffered. Just as situations vary, so may the fixed characteristics of those to whom the threat is made.
30. Within the context of the development of the defence of provocation, the circumscription of the defence so that not only should the accused, in losing self-control, react proportionately to the insult that broke that self-control, but that such accused would be a notional reasonable person with the characteristics of an average member of society was much criticised; see Brett - The Physiology of Provocation [1970] Crim LR 634. With the decision of the House of Lords in R v Camplin [1978] AC 705, some modification of the entirely detached nature of the test was allowed. The decision was the model for developments enabling elements of individual characteristics into other defences in criminal law. The reasonable person became a person of the same age as the accused and in the same situation as that in which the provocation was offered.
31. In The People (DPP) v Dickey (Court of Criminal Appeal, unreported, 7 March 2003), no ruling incorporating subjective elements into the defence of duress was made. Rather, the court proceeded on the basis of the unchallenged correctness of the direction of the trial judge as to the defence:
When you are considering [the applicability of duress as a defence] … it is not what you would do in the situation but what you perceive the accused's powers were, and take into account the particular circumstances and human frailties of the accused specifically.
32. Such a direction is difficult to follow. If the accused is taken to be an absolute coward, then there will be a ready excuse for him or her yielding even to the mildest threat. It would be easy to present a case claiming that or any other apparently excusing personality make-up. What the "accused's powers" may or may not be entirely depends on the individual, with no leavening requirement that reasonable courage be shown or that reasonable alternatives to participating in a crime should be sought. This would completely undermine the interest of society in asserting the rule of law. Those elements are integral to the defence of duress.
33. Turning to the requirement that the law should be founded on both respect for the individual as well as society, it is apparent that the manner in which a threat may cause an individual to react can vary with the characteristics that are personal to them. To threaten a pregnant woman, for instance, with mild violence to her body may meet the requirement that the threat should overcome the ordinary power of human resistance. Such a threat would not excuse a grown man from participating in a crime. What is a threat to a physically weak person, or a very old individual, or a person with compelling medical needs or a desperate need to avoid an allergic reaction would not amount to overwhelming compulsion on a healthy man or woman of college-going age.
34. Drawing on the decision in Camplin , courts in the neighbouring kingdom have relied upon analogy with the law of provocation and introduced elements of an accused's individual characteristics into the defence of duress. Smith, Hogan, and Ormerod comment that this authority "suggests that account should be taken of not only the gravity of the threat to [the accused] but also the sex and age of [the accused] and such of [the accused's] characteristics as would affect the gravity of the threat to him [or her]"; page 353. Other authorities have held that pregnancy and serious physical disability, together with a recognised mental illness or psychiatric condition such as post-traumatic stress disorder can be incorporated into the characteristics of the individual accused, while still requiring that such a person show reasonable courage. In most Australian jurisdictions, a similar approach has been adopted. Thus in R v Palazoff (1986) 43 SASR 99 at 109, the person of ordinary firmness of mind against whom the accused is to be assessed is a person of the same age and sex and background and other personal characteristics, apart from the same strength of mind as the accused. Such criminal conduct as the accused with such characteristics is engaged in must, nonetheless, be a response of reasonable courage to the threat. In Queensland, an accused must reasonably believe that he or she or the other person threatened for the purpose of compulsion is unable to otherwise escape the carrying out of the threat and it is further required that engaging in the criminal conduct must be reasonably proportionate to the harm or detriment threatened; see Taiapa v R and Fairall and Barrett, paragraphs 8.25 to 8.31.
35. The Law Reform Commission reached a similar conclusion in recommending at paragraph 5.72 of their Report on Defences in Criminal Law:
The Commission considers that the belief in the existence, nature and seriousness of the threat should be reasonably held and the test should be one that is based on what an ordinary person with the accused's characteristics would have reasonably believed in the circumstances.
36. In other jurisdictions, difficult situations have arisen whereby distinctions may need to be drawn between a recognised psychiatric condition affecting the ability of an accused to withstand coercion and unusual vulnerability. This may arise, for example, from a low intelligence quotient. If this does not amount to mental illness, reasonable courage is nonetheless required. Learned helplessness due to, for example, repeated physical or sexual abuse which may increase vulnerability to threats is the object of academic criticism of the existing judicial decisions in the neighbouring kingdom; Smith, Hogan, and Ormerod, page 353.
37. There has also been some discussion in the authorities as to the requirement for the threat leading to criminal conduct to be immediate and actually present at the time of the commission of the crime and for the defence to be nullified by voluntary participation; see Lynch v DPP for Northern Ireland [1975] AC 653. Fundamentally, however, such issues are answerable on the basis of principle. One asks: on a reasonable basis was the threat operative on the accused as a person required to show reasonable courage at the time of the commission of the offence to which they assert duress as a defence. To voluntarily engage in a violent criminal gang is to voluntarily make oneself liable for the coercion inherent in such organisations. Cases such as ones excusing perjury in court despite the presence of police and other authorities may be regarded as outliers; see R v Hudson and Taylor [1971] 2 QB 202 and R v Batchelor [2013] EWCA Crim 2638. Any issue concerning threat to property excusing a crime may be explored in an appropriate case. Principle would seem to exclude this from the defence of duress, but threats of destruction to irreplaceable works embodying the human spirit, such as the Ardagh Chalice or the Book of Kells, might be arguable.
Summary
38. Since these difficult questions of law become decisions for trial judges on a day-to-day basis, and since the judiciary are required to instruct juries in coherent terms, a concise summary may be useful.
39. In essence, duress excuses criminal conduct where unwished for constraint compels an accused of reasonable firmness, of the age, sex and other relevant fixed and permanent characteristics of the accused, into criminal conduct. That coercion, on a reasonable view, should be so serious as to overcome the resistance of the person seeking to assert the defence. Duress is a defence but only provided that person genuinely feels under threat of death or serious physical violence from a threat directed against the accused or the accused's immediate family or someone close to him or her, or someone for whose safety the accused reasonably considers himself or herself responsible. The defence of duress only applies where that person has no available resort to any lawful alternative through any reasonable means. A jury should be reminded that every person is required to obey the law. If any reasonable opportunity exists for the person who claims to be under duress to take any lawful evasive action, particularly seeking the assistance of law enforcement authorities, it must be taken. If resort to lawful authority, or to any other lawful means of not committing a crime, is not taken when it is reasonably open to an accused, the defence of duress does not apply.
Personal characteristics and this accused
40. The submissions on behalf of Trevor Gleeson contend that the decision of the Court of Appeal is correct. It is argued that there should have been emphasis on the job of the accused and his position within society. These, however, are no more than the circumstances within which a threat may take place. Everyone in court was, moreover, aware of that. Reasonable firmness is what is required. At paragraph 18, those submissions state:
In summary, it is respectfully submitted that the Court of Appeal was correct in stating the jury ought to consider the reactions of the accused taking into account his particular circumstances as per the excusatory nature of the defence. The Court of Appeal's contention that a jury should be permitted to consider allegations of duress in the context of the "individual and personal circumstances of the accused" (specifically in this instance in the category of a prison officer) is not per se a very broad departure but instead follows the well established jurisprudence of the Common Law countries (as cited by the [Director of Public Prosecutions]) which includes the "characteristics of the accused" as a factor.
41. For the Director of Public Prosecutions, it is argued that the law on duress should only be modified from its objective stance to take into account the permanent and fixed characteristics of the accused. At paragraph 10.1, the following summary is given: For the foregoing reasons, the Appellant submits that [t]he Court of Appeal erred in concluding that a jury should consider allegations of duress in the context of the individual and personal circumstances of the accused person. Fundamentally, such a test fails to strike an appropriate balance between the conflicting interests of the accused, society and victims. The standards to be applied in judging both the perceptions and actions of the [a]ccused should continue to be objective but modified to take account of certain permanent characteristics of the [a]ccused.
42. What is difficult to understand in the context of this case is: what are the characteristics of the accused which the jury was supposed to take into account? The jury knew that they were dealing with a man who worked as a prison officer. These amount to no more than the circumstances within which the alleged threats were supposedly made. There was nothing to suggest that any particular factor rendered those threats more potent to him than to any other officer working in a prison setting. Nothing on the face of the written submissions points to anything other than that he was a man with a family and that prisons hold some dangerous individuals who, in the nature of criminal activity, will usually have associates who are not locked up. These are merely circumstances, and have nothing to do with the plea that special and fixed characteristics such as mental illness, age, illness or serious infirmity were engaged. In fact, no characteristic of any kind was pleaded before the court of trial or argued on this appeal. In point of fact, the trial judge's direction to take into account the accused's "age and gender" was the only one which she could properly have given.
43. It follows that there could have been no misdirection by the trial judge. She gave the standard direction in accordance with such existing decisions that were relevant. There was nothing to which she could have referred whereby the requirement that the accused show ordinary courage might be modified by his nature.
44. In addition, there were multiple occasions for the accused to have resort to the authorities. It was a question for the jury as to whether these should have been taken in the circumstances of constraint under which the accused claimed to have been acting. By their verdicts of guilty of simple possession of various controlled drugs, there was a finding of fact in this case that reasonable resort to avoiding the crimes charged was available to the accused, but was not taken.
Form of order
45. It follows that the decision of the Court of Appeal should be reversed. The consequences of such order, including possibly the reinstatement of the convictions of the accused, should be subject to discussion with counsel before this Court makes a final order.
