2017/05382/B1
Neutral Citation Number: [2018] EWCA Crim 1397

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  8th  June  2018

B e f o r e:
LORD  JUSTICE  HOLROYDE

MS  JUSTICE  RUSSELL  DBE

and

HIS  HONOUR  JUDGE  MAYO  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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PASCOE  PETGRAVE

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Mr S Reid appeared on behalf of the Appellant

Mr D P Ryan appeared on behalf of the Crown

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J U D G M E N T
Friday  8th  June  2018

LORD JUSTICE HOLROYDE:  
1.  On 9th November 2017, following a trial in the Crown Court at Inner London before His Honour Judge Seed QC and a jury, the appellant was convicted of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988.  His defence was that he had admittedly driven dangerously and thereby caused serious injury, but that he had done so under duress of circumstances.

2.  The appellant now appeals against conviction by leave of the single judge.

3.  The facts, in summary, were these.  At about 4.30am on Sunday 29th May 2015, Ms Higgins and Ms Cox were walking along a side street in Norwood, south east London, having just left a nightclub.  The appellant was the driver of a BMW car which was travelling in the same direction along that street.  He left the carriageway, mounted the pavement and drove along the pavement towards the two young women.  He did not sound his horn or flash his lights or do anything else to warn them of his approach.  He collided with them and then drove on without stopping.  His car struck only a glancing blow to Ms Cox, but collided directly with Ms Higgins, causing her very serious injury.  Ms Higgins suffered spinal injury which resulted in paralysis and, sadly, has left her with permanent substantial disability.  She is dependent upon the assistance of others with many of the activities of daily living and is particularly, and understandably, distressed by her inability to care for her children in the way she did before she was injured.

4.  Three prosecution witnesses gave eyewitness evidence of these events.  One described seeing the appellant's car turning off the carriageway and through a small gap between parked cars before mounting the pavement.  She saw it strike the two victims, then carry on along the pavement at speed and re-join the main road at a junction.  A second witness was on the pavement when a friend alerted her to get out of the way.  She saw the BMW mount the pavement and move slowly towards her.  She moved aside and the car began to speed up before it hit the two young women and carried on along the pavement.  She also saw two boys running along the pavement and past her.  They had their hoods up.  One was holding a bat.  A third witness, who was with the second, similarly jumped out of the way before seeing the car hit the two young women in front of her.  She saw two males chasing the car, one with a baseball bat and the other with a hammer.  She saw them get into a car.

5.  Evidence was given by an accident reconstruction officer who had studied CCTV footage from the scene.  He estimated that the appellant's speed was between 13 and 15mph when he first mounted the pavement, and between 19 and 22mph a little further along.  The CCTV footage also showed that, notwithstanding the time, the side road was, effectively, grid-locked with vehicles.  The only moving vehicle was the appellant's BMW car on the pavement.   We understand the footage further showed that the two men chasing the appellant's car were carrying items.  One, which was later recovered at the scene, turned out to be a length of wood with a nail through one end; the other was apparently carrying a hammer. 

6.  The prosecution also adduced evidence (we assume at the request of the defence) of a letter, dated 3rd June 2015, in which the police informed the local authority in Croydon (the appellant's home area) that he was deemed at risk of gang violence.  The letter appears to have been written in order to assist the appellant in obtaining accommodation outside the area, on the basis that his living in the family home posed a risk both to him and to his family.  The letter said that there were numerous intelligence reports documenting the appellant's issues with local gangs and gang associates and that he had a history of both offending and being a victim in Croydon.  It referred to crime reports in relation to incidents on 23rd April 2015 and 9th May 2015 when the appellant had been followed or chased by one or more persons armed with a knife, and to a note delivered to the family home in April 2015 saying: "You and your family are in danger".  

7.  Further evidence was adduced about one of the reported incidents, to the effect that the appellant and his father had been chased by several youths, at least one of whom had a knife, on 9th May.

8.  The appellant was spoken to about those matters on 3rd June 2015, before he had been arrested for this offence.  He said nothing at all about the incident involving the collision on the pavement, notwithstanding that at trial his defence was to be that he was in fear for his life.  He was offered help by the police but did not seem to think there was anything the police could do to assist.

9.  Other evidence was given as part of the prosecution case in the form of agreed facts.  These included the fact that the appellant was arrested on 16th June 2016 and was twice interviewed under caution on 17th June and 8th November 2016.  He answered "No comment" to all questions on each occasion.  We understand that in at least one of those interviews the CCTV footage was shown to him.

10.  At the conclusion of the prosecution evidence a submission of no case to answer was made by Mr Reid, then as now appearing on behalf of the appellant, on the basis that the prosecution could not disprove the defence of duress of circumstances on which the appellant sought to rely.  The submission was opposed by Mr Ryan, then as now appearing on behalf of the prosecution.  His Honour Judge Seed QC rejected the submission.  One aspect of his ruling, to which we will return, gives rise to the first ground of appeal.

11.  Following the failure of Mr Reid's submission, the trial continued.  The appellant gave evidence.  He described the incidents in April and early May 2015 when he had been in fear of being stabbed.  He denied being a member of a gang.  He said that he had just been targeted and that it was "all to do with what it is like in Croydon".  As to the night in question, he said that he had been stationary in traffic, waiting to turn from the side road on to the main road.  He briefly spoke to an acquaintance who came to the side of his car and then noticed that someone in a vehicle on the other side of the road was pointing at him.  He then saw two males get out of that vehicle, go to the boot and take something out.  His evidence was that he thought one of the men had a Samurai sword and the other had a hard object which he thought could be a gun.  He said that he felt he needed to get away, but could not drive on the carriageway because of the stationary traffic.  Something was thrown at his windscreen and the two men charged towards his car.  He said that he felt that if he did not move he would be dead.  He therefore drove on to the pavement and continued along it because he knew that if he stopped, the men would stab or shoot him.  He was in fear and did not think to take any action to warn the pedestrians.  He accepted that he had driven dangerously and had caused serious injury, about which he said he felt guilty because his victim was an innocent woman, but he said he only drove on the pavement because he believed he would come to serious harm if he did not.  

12.  Thus, the legal ingredients of the offence charged were all admitted.  The defence was one of duress of circumstances.  

13.  Before the summing-up the judge discussed with counsel the appropriate directions of law to be given to the jury.  In the course of that discussion Mr Reid referred to the ruling on the submission of no case to answer, which he said he understood to mean that the judge would have stopped the case if the only issue had been whether the jury could be sure that there was no threat to the appellant.  The learned judge said that that was so.  Mr Reid then submitted that it followed, as a matter of law, that the first part of the defence was made out.  To this the learned judge replied (at page 4F of the transcript):

"Well, the fact that I have not stopped the case, I have allowed it to go on, means it is still a matter for them, but I will … put that to them in the same way that I put serious injury and dangerous driving to them.  And I will say that you may well feel, having seen the closed-circuit television and two people, at least one of them [armed], that the answer to that question is yes."

14.  Thereafter, the judge summed up to the jury.  He gave oral directions of law.  At the conclusion of his summing-up he provided the jury with, and read with them, a document entitled "Guide to the Indictment" which set out three questions which the jury had to ask themselves.  The second ground of appeal relates to those questions.  They read as follows:

"Question 1

Was there a threat of death or serious injury to [the appellant] that was operational at the time?

•	If you are sure that there were no such threats, then you return a verdict of 'Guilty' and disregard the following questions.

•	If, however, you decide that he was or may have been, subject to threats, go to question 2.

Question 2

Did [the appellant] do what he did or might he have done what he did because he genuinely and reasonably believed that if he did not do it, he would be killed or seriously injured either immediately or almost immediately?

•	If you are sure that this was not the case, return a verdict of 'Guilty' and disregard the following questions.

•	If you decide that this was or may have been the case, go to question 3.

Question 3

Might a sober person of reasonable firmness, sharing the characteristics of [the appellant] have responded to that situation by acting as [the appellant] acted?

•	If you are sure that such a person would not, then return a verdict of 'Guilty' and disregard the following question.

•	If you decide that such a person would or might have acted in the same way, then return a verdict of 'Not Guilty'."

15.   We turn to the grounds of appeal, about which we have heard submissions from both counsel.  In his ruling rejecting the submission of no case to answer, the learned judge summarised, accurately, the evidence which at that stage of the trial had been given by the prosecution witnesses and in the agreed facts.  He summarised the submissions of counsel as to the law of duress of circumstances and cited the decision in R v Martin (1989) 88 Cr App R 343 (at 346) in which the availability of duress of circumstances as a potential defence to a charge of disqualified driving was first recognised.  In a well-known statement of the relevant law, the judgment of the court given by Simon Brown J (as he then was) said this:

"13.  … assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result?  Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted?  If the answer to both those questions was yes, then the jury would acquit: the defence of necessity would have been established."

16.  It was submitted by Mr Reid that, on the evidence adduced, the prosecution could not disprove that the appellant had been impelled to behave as he did because he had cause to fear that serious injury would otherwise result, having regard to the evidence of two men with weapons pursuing his car and to the evidence of previous incidents.  Mr Reid further submitted that the prosecution could not disprove that a sober person of reasonable firmness in that position would not have behaved in the same way.

17.  The learned judge then referred to the guidance set out in the Crown Court Compendium as to the directions to be given to juries when the defence of duress of circumstances is raised.  The relevant sections at chapter 18.3 of the Compendium refer to Martin and indicate that the jury should be directed to determine the two questions which we have just quoted.

18.  Having referred to the guidance in the Compendium, in his ruling the judge said this (at page 5H to 6D):

"It is conceded by Mr Reid that it all turns on the second question, although I am not sure that Mr Ryan conceded that the evidence as it currently stands is resolved in favour of [the appellant], although he seemed so to do, and I certainly rule that it does.  Mr Reid submits that the only thing [the appellant] could do to avoid the imminent threat was to drive on the pavement to get away, given the state of the evidence about the road.  Mr Ryan submits that that was not the reasonable response to the situation and [the appellant] should have secured himself in the car and raised the alarm and not driven along the pavement.  I have to say I do not think that this is a realistic proposition, framed in the way it is, but given the way that the second of the questions to which I have referred is framed, it seems to me that it is a question for the jury, and my view is about what a reasonable person would have done, unless I can say that no reasonable jury could come to a different conclusion (which I cannot) I have to leave that matter to the jury, and so this submission of no case fails on that very limited ground and the case needs to proceed."

19.  In his submissions to this court, Mr Reid argues that the learned judge should have allowed the submission of no case to answer.  He contends that in the passage which we have just quoted the learned judge ruled as a matter of law that the prosecution could not disprove the first limb of the defence, as explained in Martin.  From that initial proposition Mr Reid goes on to argue as follows: the judge had assessed the evidence about the situation in which the appellant found himself and had decided that it was not "a realistic possibility" for him to have acted differently; that was a finding by the judge that no reasonable jury, properly directed, could reach any other conclusion; and that was because the judge's finding that it was not a realistic possibility for the appellant to have acted differently means that it would be fanciful for a jury to think that he might have done.

20.  On this issue, Mr Ryan submits that the learned judge was correct to conclude that the case did not come within the second limb of the well-known case of Galbraith and that there was a case to answer.  He argues that, in rejecting the defence submission, the judge did not give a binding ruling as to how the jury must approach the case; it was all a matter for the jury to decide, and it would not have been proper for the learned judge to substitute his own personal view of the evidence.

21.  The second ground of appeal relates, as we have indicated, to the written questions posed to the jury by the learned judge at the conclusion of his summing-up.  Mr Reid does not complain about the terms of the questions in themselves, but he submits that only the third of those questions should have been left to the jury.  That, of course, was the submission which he had already made to the learned judge when discussing issues of law to be covered in the summing up.  Mr Reid recognises that this second ground of appeal has to be founded on his first ground of appeal because it, too, relies on the passage which we have quoted from the judge's ruling on the submission of no case to answer.  In his helpful written argument, Mr Reid summarises the point in this way: given his ruling at the end of the prosecution case, that is, that the jury would inevitably conclude that the appellant had been impelled to act as he did due to a genuine fear of death or serious injury, the judge should not have left that part of the case to the jury and should instead have directed them only to answer the third question which related to the objective part of the test.  By not doing so, the learned judge fell into error in allowing and indeed directing the jury to consider part of the case which he had, effectively, ruled was withdrawn from the jury's consideration.

22.  On this ground, Mr Ryan submits that the learned judge was correct to direct the jury as he did and would have been wrong to give the jury only a partial or incomplete direction as to their approach to the issue of duress.  He emphasises the phrase used by Mr Reid suggesting that the judge "had effectively ruled" that matters had been withdrawn from the jury's consideration.  They had not been so withdrawn, submits Mr Ryan.

23.  We have reflected on these competing submissions.  The defence of duress of circumstances may in principle be a defence to most crimes (with certain specific exceptions).  We accept that it may be a defence to a charge under section 1A of the 1988 Act.  It is a defence by which an accused justifies his commission of what would otherwise be a crime on the ground that he was compelled by force of circumstances to act as he did.  It is to be distinguished from the defence of duress by threats, which may arise when an accused explains his commission of a crime by saying that he had been threatened with death or very serious injury if he did not commit it.  That latter defence does not arise in this case.

24.  The issues for a jury considering the defence of duress of circumstances are those identified by this court in Martin.  Consideration of the defence therefore requires the jury to reflect upon the accused's reasons for acting as he did, his reasonable belief as to the situation in which he found himself and his good cause to fear death or serious injury, and also to reflect upon whether a sober person of reasonable firmness would have responded in a similar way to the particular situation in which the accused was placed.  

25.  We accept that there may be cases in which the evidence adduced as part of the prosecution case provides a basis for a successful submission of no case to answer on the ground that that evidence in itself raised the issue of duress and was such that no reasonable jury, properly directed, could find that the defence had been disproved.  But, having regard to the nature of the defence, we think that such cases will be rare.  In our judgment, this case is certainly not one of them.  

26.  In Martin the ground of appeal challenged the decision of the trial judge that the defence was not available.  Other reported cases concerned challenges to the decision by a trial judge to withdraw the defence from a jury.  This case is different.  Here, as it seems to us, the logical starting point is the contention, necessarily implicit in the first ground of appeal, that by the conclusion of the prosecution evidence the defence had been raised and the burden accordingly lay on the prosecution to disprove it.

27.  We are unable to accept that contention.  The prosecution evidence showed, at its highest, that the appellant had in the past been threatened by armed men and that on the night in question his car was chased along the pavement by armed men.  But the prosecution evidence was silent as to when, how or why that chase began.  It did not, and could not, tell the jury anything about whether the appellant was driving on the pavement because he was being chased, or for some other reason.  For all that the prosecution evidence showed, the appellant might deliberately have acted in a way which provoked the men to chase him; or he might have been driving on the pavement in order to remove himself from the scene of a crime of which his pursuers were the victims.  Nor could the evidence at that stage tell the jury anything about whether the appellant was in fear.  Even if he was in fear, there was at that stage of the trial no evidence that he was in such fear that he was compelled to drive along the pavement, without even sounding his horn as his car bore down on the pedestrians in front of him.  Because he had declined to answer questions in interview, it could not be suggested on his behalf that the interview record raised any evidence which could and did sufficiently raise the defence of duress of circumstances.  

28.  Once the appellant gave evidence, of course, the position was different.  The defence was raised in his evidence and it was for the prosecution to disprove it.  But a defendant who wishes to rely on the defence of duress of circumstances cannot put it in issue through his advocate.  It must be put in issue by evidence.  In this case the prosecution evidence did not raise the issue.  It did no more than provide a foundation on which the appellant could build to raise the issue himself, if he chose to give evidence, that he acted in fear and out of necessity.  Thus, in our judgment, the learned judge's decision to reject the submission of no case to answer was correct.

29.  Furthermore, and in any event, Mr Reid's reliance on the words which we have quoted from the judge's ruling is in our view misplaced.  When the passage is read as a whole it is, in our view, clear that the judge was doing no more than saying that his personal view of the evidence led him to expect that the jury would resolve the first of the Martin points in the appellant's favour.  That was a perfectly understandable view.  With respect to the judge, his use of the phrase "and I certainly rule that it does" is difficult to follow.  If it was intended to be a ruling of law that it was not open to the jury to take a different view, then in our judgment it would, with respect, have been improper.  But it is important that the phrase must not be taken and read in isolation from the rest of the passage which we have quoted.   Taken as a whole, it seems to us clear that the judge did not intend to withdraw from the jury points which were properly for their consideration, as his later response to a point made by Mr Reid during the discussion of legal issues confirmed.

30.  We therefore regard the first ground of appeal as misconceived.  The issue of duress of circumstances had not at that stage of the trial been raised by evidence so as to cast a burden of disproving it upon the prosecution, and the judge did not withdraw any factual issue from the jury by concluding that it could only be resolved in the appellant's favour.

31.  As to the summing-up, we note that it is no part of the second ground of appeal to criticise the terms of the questions posed for the jury's consideration.  Those questions assisted the jury by providing a structured approach to their consideration of the issue of duress of circumstances.  That was, indeed, the only contentious issue in the case, as the appellant admitted all the ingredients of the offence charged, subject only to his claim that he acted under duress of circumstances.

32.  We have already rejected the submission that, in his ruling on the submission of no case to answer, the judge had withdrawn (or, as Mr Reid put it, "had effectively withdrawn") part of the case from the jury.  That submission is the necessary premise of the second ground of appeal, which consequently must also fail.  But we make clear that, in any event, we cannot accept the argument that, having rightly determined the approach to be taken by the jury when considering duress of circumstances, the judge should have taken it upon himself to decide the first stage of that approach and to tell the jury what decision they must reach about it.  On the contrary, as the judge correctly ruled, each step of the approach was a matter for the jury.  The judge could no more usurp the jury's role by directing them in the manner for which Mr Reid contends than he could usurp their role by telling them that they must decide the first question against the appellant.

33.  We, therefore, reject both the grounds of appeal.  The judge's rulings were correct.  There is no ground for doubting the safety of this conviction. 

34.  Accordingly, this appeal fails and is dismissed.