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[2008] All ER (D) 56 (Mar)
R v Ali
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Court of Appeal, Criminal Division
Dyson LJ, Penry-Davy J and Sir Christopher Holland
5 March 2008
Criminal law – Trial – Directions – Robbery – Duress – Voluntary association –
Defendant associating with known criminal – Defendant committing robbery –
Whether nature of criminal activity had to be foreseen for defence of duress to be
excluded – Defendant having two cautions for offences of dishonesty – Judge
finding defendant not entitled to good character direction – Whether judge erring –
Whether conviction unsafe.
The defendant was charged on an indictment with robbery. At the trial, it was not
disputed that he had been involved in the robbery. However, the defendant
contended that he had acted under the duress of another man, H. He contended
that he had not known that H was a criminal, but in interview he had contended
that his parents and his brother had warned him to stay away from him because
he was unemployed. During his evidence in chief the defendant stated that he had
two cautions for offences of dishonesty. In relation to the second he contended
that he had been threatened by H to steal alcohol from a supermarket. In his
summing up the judge directed the jury that the defence of duress did not apply if
the defendant had chosen voluntarily to associate with someone he foresaw or
ought to have foreseen would compel him, by threats of violence, to commit
criminal acts. He repeated that direction. The judge further stated that the
defendant had chosen to associate with bad company and he explained what he
meant by bad company. The judge found that, given the defendant's previous
cautions for offences of dishonesty, the defendant was not entitled to a good
character direction. The defendant was convicted. He appealed, inter alia, against
conviction.
He submitted that the judge had erred in failing to direct the jury on duress in
accordance with authority. In particular, he had failed to mention the criminal
activity in which H was alleged to have been involved in, and which he could have
foreseen. He submitted that the judge had given the jury the impression that he
could not rely on duress if it was by persons who were bad company, without
explaining what bad company meant. He also submitted that the judge had erred
in failing properly to direct the jury on his good character in accordance with the
standard Vye direction.
An issue arose as to whether the nature of the criminal activity of the person who
had threatened the defendant had to be foreseen for the defence of duress to be
excluded.
The appeal would be dismissed.
(1) On settled authority the defence of duress was not available where as a result
of a defendant's voluntary association with others involved in criminal activity he
had foreseen or ought reasonably to have foreseen the risk of being subjected to
any compulsion by threats of violence to commit criminal acts. The core question
was whether the defendant had voluntarily put himself in a position where he
foresaw that there was such a risk. It was the 'risk' of being subjected to any
compulsion by threats of violence to commit criminal acts that had to be foreseen,
rather than the nature of the activity in which the the person making the threat
had been involved.
In the instant case, the judge's direction had been the same as that in the Judicial
Studies Board's specimen direction, and it was not different, save for the
substitution of two words, from that in settled authority. He had repeated that
direction twice in the summing up. Further, the judge had made clear what he
meant by 'bad company'. His direction had captured the essence of the point that
had to be made.
R v Z [2005] 3 All ER 95 applied.
(2) On settled law, where a defendant had cautions but no convictions, it was a
matter for the judge's discretion whether a direction on good character should be
given.
The judge had been entitled, in the exercise of his discretion, to rule that the
defendant was not entitled to either limb, namely credibility and propensity, of the
Vye direction. The defendant had admitted to two offences of dishonesty, which
had been committed in the recent past. Those cautions had reflected on the
commission of the instant offence and cast doubt on his veracity. In those
circumstances,the judge had been entitled to take the view that the defendant was
not a man of good character and that he was not entitled to either limb of the good
character direction.
R v Vye; R v Wise; R v Stephenson [1993] 3 All ER 241 considered; R v Martin
[1999] All ER (D) 1482 considered.
Robert Rinder (assigned by the Registrar of Criminal Appeals) for the defendant.
Catarina Sjolin (instructed by the Crown Prosecution Service) for the Crown.
Carla Dougan-Bacchus Barrister.
Source
[All England Reporter]
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Date/Time Sunday, December, 7, 2008, 18:32 GMT
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