No. 95/5764/Z4
BAILII Citation Number: [1996] EWCA Crim 1792 
IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Date: Tuesday 5th March 1996

B e f o r e:

LORD JUSTICE STUART-SMITH

MR JUSTICE BUCKLEY

and

HIS HONOUR JUDGE HYAM
(ACTING AS A JUDGE OF THE CACD)

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R E G I N A

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CECIL BOWEN

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(Computer Aided Transcript of the Stenograph Notes of John Larking Verbatim Reporters, Chancery House, Chancery Lane, 
London WC2
Telephone: 071 404 7464
Official Shorthand Writers to the Court)

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MISS A LEVITT appeared on behalf of the Appellant

MISS E SNELLER (MR PJ GRIBBEL, 23.2.96) appeared on behalf of the Crown

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JUDGMENT

Friday 5th March 1996
JUDGMENT
LORD JUSTICE STUART-SMITH: On 2nd August 1995 in the Crown Court at Luton the appellant was convicted of five counts of obtaining services by deception. He was subsequently sentenced to 18 months imprisonment, concurrent on each count. He now appeals against his convictions with leave of the Single Judge.
The five counts were specimen counts reflecting a large number of incidents during the period January 1992 to June 1994. On some forty occasions the appellant had visited shops selling electrical goods and obtained a large number of them by applying for `instant credit'. On all occasions he had paid a proportion of the cost by way of deposit. He had not completed payment of any of the goods concerned. Payments were to be made in some cases by `payment book' and in others by `direct debit'. There was evidence that some of the direct debits had been cancelled by the appellant.
On all occasions he had given his correct name and bank details. On some occasions he had given his correct address; on others not. The total amount of credit obtained was about £20,000.
The appellant was arrested on 14th June 1994 as he attempted to buy a `camcorder' using the same method. He was interviewed at some length without a solicitor being present, though he had received some advice over the telephone. After some initial prevarication he told the officers that he had obtained a large number of goods that he subsequently sold and that, although he had made some payments for them, he stopped paying the finance company.
He was interviewed again on 10th August 1994 when details of the various agreements were put to him and he accepted that he had obtained the goods in question. He said that he had stopped paying for the credit because he could see little point in doing so when it was so easy and he had sold the goods as a way of making a `quick buck'. He said that he had not realised that what he was doing was a criminal offence; he thought he was just getting himself into debt.
On 1st November 1994, after his appearance in the Magistrates' Court, he attempted to obtain a repair on some equipment which he had previously obtained by his deception. He was arrested and again interviewed, when he acknowledged that the goods were the subject of the proceedings and had not been paid for.
Apart from an oblique reference to threats in these last two interviews, there was no mention of the events which were to form the basis of his defence of duress. The Crown's case was that the appellant had no intention of paying the amounts of the credit outstanding in respect of any of the goods in question.
The appellant gave evidence; he accepted that he had obtained the goods on credit and had made few payments. He asserted that throughout the period he had acted under duress. He had been approached first by an acquaintance when buying a television for himself, and asked what was needed to obtain credit. Thereafter two men had accosted him in a public house, and he had been threatened by them that he and his family would be petrol-bombed if he did not obtain goods for them. On each occasion he was told what goods the men required. He was told that if he went to the police his family would be attacked. He said that he had not told the police this in interview because he was worried about the possible repercussions.
He called two witnesses to support this case, Mr Cowdry and Mr McKenna; both had convictions for dishonesty; both said the appellant was a simple man who had difficulty reading and writing and who required a great deal of assistance to cope with his job as a taxi-driver. Mr McKenna said that he had seen two men apparently threatening the Appellant, but had not gone to the police because the appellant asked him not to. In cross-examination Mr Cowdry said that he had become aware that the appellant had been threatened and had told him to go to the police, but had formed the impression that he was too frightened to do so.
Counsel for the defence had challenged the reliability of the interviews. Two psychologists were called, Ms Kingswood for the appellant and Dr Gudjonsson for the Crown. They gave evidence, both on a voir dire and before the jury. On the voir dire the Judge rejected the defence submission that the interviews should be excluded. There is no appeal from that decision.
Before the jury Ms Kingswood said that the appellant had an IQ of 68 and a reading age of a child of six years and eight months. His level of ability was in the lowest 2% of the population. She found him abnormally suggestible. She said he was unlikely to have appreciated the significance of the questions put to him. She felt he was a `vulnerable' individual. Dr Gudjonsson did not accept these conclusions. He thought the appellant might be faking a poor result; he thought that the appellant's IQ was higher than 68.
The appeal is based on what Miss Levitt submits was a misdirection in law in relation to the defence of duress. The Judge dealt with this matter in a number of passages in the summing up. At pages 12F-13D he said: 
"What is duress? Well, duress it consists of words spoken or conduct on the part of another person which drives the defendant to commit the offence because at the time of it he has good cause to fear that either he or his immediate family will be severely injured if he does not do so.

It also has to be the type of threat or conduct or words spoken that would have driven a person of reasonable firmness - that means really a normal person who is not of a particularly nervous disposition - in those circumstances of the sex and age of the defendant in the same circumstances to do the same thing.

So, you have a number of steps to cover in that. The first is, were there any threats by words or conduct? If you come to the conclusion that there were not then of course duress does not even start to be considered, but if you come to the conclusion that there were or may have been then of course you have to consider whether they were of the type which would have driven a person of reasonable firmness of the [same] sex and age of the defendant and in the same circumstances as the defendant to have committed the offences."
After summarising briefly the defence case on duress, he told the jury that if they believed the defendant, or thought he might be telling the truth, they should acquit. In other words, he told them to apply the first or subjective test (see page 14C-D).
At pages 15F-16A he repeated the two stage test; he did not use the expression 'sharing the characteristics' of the defendant, but again referred to his age and sex when dealing with the objective test.
After rehearsing the defence evidence, at page 33C-D he again posed the two stage test in terms similar to those he had used previously.
And finally, at page 42D-G he told the jury that if they believed the defendant, or thought he might be telling the truth, they should acquit.
At the conclusion of the summing-up Miss Levitt submitted that the Judge should have included in his direction that the sober person of reasonable firmness was someone who shared the Defendant's characteristics. The Judge accepted that he had not used this expression; he considered that he did not have to do so. He said, at page 44F:
"This is a simple question. They either think they [the defence witnesses] are lying. If they do then he is guilty or it duress does not come into it or they think they are telling the truth or may be telling the truth in which case then it is duress."
We should add that that was not in the presence of the jury.
Miss Levitt submits to this Court that the Judge was in error in omitting these words.
The classic statement of the law is to be found in the judgment of the Court of Appeal in R. v. Graham [1982] 74 CAR 235. At page 240 Lord Lane CJ, giving the judgment, quoted a passage from the Law Commission Report No. 83 at paragraph 2.28, which includes this passage:
"Whether the words "in his situation" comprehend more than the surrounding circumstances, and extend to the characteristics of the defendant himself, it is difficult to say, and for that reason we would not recommend without qualification the adoption of that solution. We think that there should be an objective element in the requirements of the defence so that in the final event it will be for the jury to determine whether the threat was one which the defendant in question could not reasonably have been expected to resist. This will allow the jury to take into account the nature of the offence committed, its relationship to the threats which the defendant believed to exist, the threats themselves and the circumstances in which they were made, and the personal characteristics of the defendant. The last consideration is, we feel, a most important one. Threats directed against the weak, immature or disabled person, may well be much more compelling than the same threats directed against a normal healthy person.
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. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self-control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one.

It follows that we accept Mr. Sherrard's submission that the direction in this case was too favourable to the appellant. The Crown having conceded that the issue of duress was open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows: (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing? The fact that a defendant's will to resist has been eroded by the voluntary consumption of drink or drugs or both is not relevant to this test."
This formulation was approved by the House of Lords in R. v. Howe (1987) 85 Cr.App.R. 32 (see per Lord Mackay of Clashfern at pages 65 and 66).
But the question remains, what are the relevant characteristics of the accused to which the jury should have regard in considering the second objective test. This question has given rise to considerable difficulty in recent cases. It seems clear that age and sex are, and physical health or disability may be, relevant characteristics. But beyond that it is not altogether easy to determine from the authorities what others may be relevant.
In R. v. Emery (1993) 14 Cr.App.R. (S) 394, the female defendant was convicted of cruelty which had resulted in the death of her child aged 11 months. On the same occasion the father of the child was convicted both of cruelty and assault causing actual bodily harm. At the trial each of the accused maintained that the other was responsible for abusing the child. Emery was allowed to call expert evidence in support of the defence of duress. She claimed that because of her fear of the father she had totally lost her capacity to act independently of him. The effect of the expert's evidence was that medical science recognised a condition known as `post traumatic stress disorder' which can result from prolonged serious violence and abuse. The features of this disorder (also termed `learned helplessness') includes an inability to resist or stand up to the abuser coupled with a dependence on the abuser which made the victim unable to seek help. The defence of duress was rejected by the jury; but the Court of Appeal, in deciding whether the sentence of four years was correct, had occasion to consider whether the medical evidence was rightly admitted. Lord Taylor CJ, at page 397, said:
"The nature of the condition for which Miss Emery's advisers contended was something with which juries would not necessarily be familiar. The medical expertise relating to this form of stress disorder is of comparatively recent development. It is complex and it is not known by the public at large. Accordingly we are quite satisfied that it was appropriate for the learned judge to decide that this evidence should be allowed.

Of course there must be limits on the nature of the evidence which can be given by medical experts in this context." 

It appears, however, that the evidence of the doctors went further than elucidating the nature of post traumatic stress disorder and sought to support the credibility of Miss Emery. At page 398 Lord Taylor said:
"The evidence should have gone no further than allowing for the doctors to give an expert account of the causes of the condition of dependent helplessness, the circumstances in which it might arise and what level of abuse would be required to produce it; what degree of isolation of the person in question one would expect to find before it appeared and what sort of personality factors might be involved.

The issue the jury had to decide in regard to Miss Emery was, whether or not the prosecution had negatived duress, and therefore the question for the doctors was whether a woman of reasonable firmness with the characteristics of Miss Emery, if abused in the manner which she said, would have had her will crushed so that she could not have protected her child. It was not for the experts to go into the question whether what she had said by way of history as to what abuse had taken place was true or not."
In R. v. Hegarty [1994] Crim. L.R. 353, Transcript No. 92/5620/W5, the appellant sought to call before the jury evidence of medical witnesses to testify to his mental instability; their reports described him as `emotionally unstable' and in a `grossly elevated neurotic state'. The judge refused to admit the evidence and his decision was upheld on appeal. In that case counsel for the appellant submitted that medical evidence might be admissible both for the purposes of the subjective test, namely whether the threats affect the accused in fact, and the objective test, namely how would the person of reasonable firmness react. Neill LJ, after referring to Emery's case, said, at page 17:
"We accept that for the purpose of the subjective test medical evidence is admissible if the mental condition or abnormality of the defendant is relevant and the condition or abnormality and its effects lie outside the knowledge and experience of laymen."
This is a reference to the well known judgment of Lawton LJ in Turner (1974) 60 Cr.App.R. 80, on the purposes and limits of expert evidence. Neill LJ then went on to consider whether medical evidence was admissible in relation to the objective test. At page 17F he said:
"As the medical evidence was not admissible to explain the reaction of the appellant himself, it was clearly not admissible in this case on the objective test."
He referred to the case of R. v. Camplin [1978] AC 705, a case on provocation, where the House of Lords rejected the submission that medical evidence was required to explain how a pregnant woman, a 15 year old boy or a hunchback would react in the circumstances. This was a matter for the jury (see particularly the speech of Lord Simon at page 727F).
At p. 18G Neill L.J. said:
"We are quite satisfied that the medical evidence is not admissible as the law stands at present on the objective test in a case of duress. Furthermore, as the objective test predicates a "sober person of reasonable firmness", we see no scope for attributing to that hypothetical person as one of the characteristics of the defendant a pre-existing mental condition of being "emotionally unstable" or in a "grossly elevated neurotic state.""
In R. v. Horne [1994] Crim.L.R. 584, the defence was duress. The appellant had sought to adduce psychiatric evidence to the effect that he was unusually pliable and vulnerable to pressure. The judge refused to admit this evidence. He said that mental characteristics such as inherent weakness, vulnerability and susceptibility to threats was inconsistent with the requirements of an objective test. The Court of Appeal affirmed his view. At page 585 the report concludes:
"The second limb of the test, which posed an objective test, required the jury to ask themselves whether a person of reasonable firmness, otherwise sharing the characteristics of the defendant, would or might have responded as he did to the threats to which he was subjected. If the standard for comparison was a person of reasonable firmness it must be irrelevant for the jury to consider any characteristics of the defendant which showed that he was not such a person, but was pliant or vulnerable to pressure. It would be a contradiction in terms to ask the jury this question, and then ask them to take into account, as one of his characteristics, that he was pliant or vulnerable."
A similar approach was adopted by the Court of Appeal in R. v. Hurst (1995) 1 Cr.App.R. 82. In that case the appellant at trial raised the defence of duress and sought to adduce the evidence of a psychiatrist, not of psychiatric disorder, but of the possible effects upon her of sexual abuse as a child. The judge refused to admit the evidence and his decision was upheld on appeal. The Court of Appeal held that the evidence of the psychiatrist amounted to no more than an impression he had formed on the basis of what he had been told of the effect of the appellant's history. However, Beldam LJ, who gave the judgment of the Court, said, at page 90:
"There is a further reason why, as it seems to us, even if Dr Mellett's evidence could have been interpreted as indicating that the appellant, due to her previous experiences, suffered from a personality defect which made her lack the firmness and resolution to be expected of someone of her age and sex, that it was, nevertheless, inadmissible."
After referring to Graham, he said, at page 91:
"So long as there is this objective element in the standard by which a person's reaction to duress by threats is to be judged, we find it hard to see how the person of reasonable firmness can be invested with the characteristic of a personality which lacks reasonable firmness, and although we appreciate the difficulty involved in trying to separate personal characteristics one from another, nevertheless we are bound by the formulation in the case of Graham, and on that basis Dr Mellett's evidence was irrelevant to any issue which the jury had to determine."
Finally, Miss Levitt relied on the recent case of R. v. Morhall [1995] 3 WLR 330. In that case the appellant's defence to the charge of murder was provocation. The House of Lords held that the fact that the appellant was addicted to glue-sniffing was a relevant characteristic for the purpose of the objective test provided by section 3 of the Homicide Act 1957 where the taunt which provoked the loss of control related to the appellant's addiction to glue-sniffing. Lord Goff of Chievely, at page 536, said "that the function of the `reasonable person test' is only to introduce, as a matter of policy, a standard of self-control which has to be complied with if provocation is to be established in law". He also considered that it was "preferable to direct juries to consider the power of self-control to be expected of an ordinary person of the age and sex of the defendant, but in other respects sharing such of the defendant's characteristics as would affect the gravity of the provocation".
Questions of duress and provocation are similar, in that the twofold test applies in each case. So far as the objective test in provocation is concerned, the question is that posed by Lord Goff to which we have referred. In the case of duress, the question is: would an ordinary person sharing the characteristics of the defendant be able to resist the threats made to him?
What principles are to be derived from these authorities? We think they are as follows:

(1)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. 

(2)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.

(3)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. Thus homosexuality may be relevant to provocation if the provocative words or conduct are related to this characteristic; it cannot be relevant in duress, since there is no reason to think that homosexuals are less robust in resisting threats of the kind that are relevant in duress cases.

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

(5)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. It is not admissible simply to show that in the doctor's opinion an accused, who is not suffering from such illness or condition, is especially timid, suggestible or vulnerable to pressure and threats. Nor is medical opinion admissible to bolster or support the credibility of the accused.

(6)Where counsel wishes to submit that the accused has some characteristic which falls within (2) above, this must be made plain to the judge. The question may arise in relation to the admissibility of medical evidence of the nature set out in (5). If so, the judge will have to rule at that stage. There may, however, be no medical evidence, or, as in this case, medical evidence may have been introduced for some other purpose, e.g. to challenge the admissibility or weight of a confession. In such a case counsel must raise the question before speeches in the absence of the jury, so that the judge can rule whether the alleged characteristic is capable of being relevant. If he rules that it is, then he must leave it to the jury. 

(7)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 as it might be, since the jury may be tempted, especially if there is evidence, as there was in this case, relating to suggestibility and vulnerability, to think that these are relevant. 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.

How are these principles to be applied in this case? Miss Levitt accepts, rightly in our opinion, that the evidence that the appellant was abnormally suggestible and a vulnerable individual is irrelevant. But she submits that the fact that he had, or may have had, a low IQ of 68 is relevant since it might inhibit his ability to seek the protection of the police. We do not agree. We do not see how low IQ, short of mental impairment or mental defectiveness, can be said to be a characteristic that makes those who have it less courageous and less able to withstand threats and pressure. Moreover, we do not think that any such submission as is now made, based solely on the appellant's low IQ, was ever advanced at the trial. Furthermore, it is to be noted that in two places - at pages 14C-D and 42D-G -the Judge told the jury that if they thought the appellant passed the subjective test they should acquit him. We are quite satisfied that in the circumstances of this case the Judge's direction was sufficient. He directed the jury to consider the only two relevant characteristics, namely age and sex. It would not have assisted them, and might well have confused them, if he had added, without qualification, that the person of reasonable firmness was one who shared the characteristics of the appellant. For these reasons, the appeal will be dismissed.
MISS SNELLER: My Lord, I am instructed to apply for costs, although I accept that the appellant remains in custody.

LORD JUSTICE STUART-SMITH: He is legally aided, is he not?

MISS SNELLER: My Lord, yes.

LORD JUSTICE STUART-SMITH: Then I do not think we will make an order in those circumstances.

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