THE LORD CHIEF JUSTICE: The Judgment of the Court which I am about to read was prepared by Lord Justice Widgery:
These appellants were convicted of perjury at the Manchester Crown Court on the 18th May 1970 and each was granted a conditional discharge. They now appeal against their convictions by leave of the single Judge.
On the 6th April 1969 a fight took place in a Salford public house between one Wright and one Mulligan with the result that Wright was charged with wounding Mulligan. Each of the present appellants gave statements to the police and they were the principal prosecution witnesses at Wright's trial. Elaine Taylor is 19 and Linda Hudson is 17.
Wright's trial took place on the 4th August 1969 but when called to give evidence the appellants failed to identify Wright as Mulligan's assailant. Taylor said she knew no one called Jimmy Wright, and Hudson said that the only Wright she knew was not the man in the dock. Wright, was accordingly acquitted and, in due course, the appellants were charged with perjury. At their trial they admitted that the evidence which they had given was false but set up the defence of duress. The basis of the defence was that, shortly after the fight between Wright and Mulligan, Hudson had been approached by a group of men including one Farrell who had a reputation for violence and was warned that if she "told on Wright in court" they would get her and cut her up. Hudson passed this warning to Taylor who said that she had also been warned by other girls to be careful or she would be hurt. The appellants said in evidence that in consequence of these threats they were frightened and decided to tell lies in court in order to avoid the consequences which might follow if they testified against Wright. This resolve was strengthened when they arrived at Court for Wright's trial and saw that Farrell was in the gallery.
The learned Recorder directed the jury as a matter of law that the defence of duress was not open to the Appellants in these circumstances. He said:
"In my direction to you which you have to obey I tell you that duress can only arise when there is a threat made of death or serious personal injury and that threat must be a present immediate threat".
Later he continued:
"Assuming everything in favour of these two girls .......assuming that Farrell did make this threat to Hudson ....... assuming that that information was passed on by Hudson to Taylor and assuming that the girls believed it; assuming in favour of Elaine Taylor and Linda Hudson that Elaine Taylor was approached on various occasions by young women who said to her "Be careful and watch it" ... assuming all that to be 100% in their favour I direct you as a matter of law that that does not amount to duress. "These girls may very well have thought that if they did not tell lies something very unpleasant might happen to them in the future, but that is not a present immediate threat capable of being then and there carried out because when they told lies they were in a court of law with the Recorder of Salford there for protection and with the police there in court and, Members of the Jury, I direct you that that does not amount to duress".
It is now submitted that this was a misdirection in law and that the case should have been left to the jury to determine, as a fact, whether the appellants had acted under duress.
We have been referred to a large number of authorities and to the views of writers of text books. Despite the concern expressed in Stephen's "History of the Criminal Law in England" (Vol. 2. p.107) that it would be
"a much greater misfortune for society at large if criminals could confer impunity upon their agents by threatening them with death or violence if they refused to execute their commands"
it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused. This appeal raises two main questions; first, as to the nature of the necessary threat and, in particular, whether it must be "present and immediate"; secondly, as to the extent to which a right to plead duress may be lost if the accused has failed to take steps to remove the threat as, for example, by seeking police protection.
It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a 'present' threat in the sense that it is effective to neutralise the will of the accused at that time. Hence an accused who joins a rebellion under the compulsion of threats cannot plead duress if he remains with the rebels after the threats have lost their effect and his own will has had a chance to re-assert itself (McCrowther's Case (1746) Foster's Crown Cases 13: A-G v. Whelan (1934) I.R.518). Similarly a threat of future violence may be so remote as to be insufficient to overpower the will at the moment when the offence was committed, or the accused may have elected to commit the offence in order to rid himself of a threat hanging over him and not because he was driven to act by immediate and unavoidable pressure. In none of these cases is the defence of duress available because a person cannot justify the commission of a crime merely to secure his own peace of mind.
When, however, there is no opportunity for delaying tactics, and the person threatened must make up his mind whether he is to commit the criminal act or not, the existence at that moment of threats sufficient to destroy his will ought to provide him with a defence even though the threatened injury may not follow instantly, but after an interval. This principle is illustrated by SUBRAMANIAM v. Public Prosecutor (1956) 1 WLR 965, when the Appellant was charged in Malaya with unlawful possession of ammunition and was held by the Privy Council to have a defence of duress, fit to go to the jury, on his plea that he had been compelled by terrorists to accept the ammunition and feared for his safety if the terrorists returned.
In the present case the threats of Farrell were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night. Insofar, therefore, as the Recorder ruled as a matter of law that the threats were not sufficiently present and immediate to support the defence of duress we think that he was in error. He should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence.
Mr. Franks, however, contends that the Recorder's ruling can be supported on another ground, namely, that the Appellants should have taken steps to neutralise the threats by seeking police protection either when they came to court to give evidence, or beforehand. He submits on grounds of public policy that an accused should not be able to plead duress if he had the opportunity to ask for protection from the police before committing the offence and failed to do so. The argument does not distinguish cases in which the police would be able to provide effective protection, from those when they would not, and it would, in effect, restrict the defence of duress to cases where the person threatened had been kept in custody by the maker of the threats, or where the time interval between the making of the threats and the commission of the offence had made recourse to the police impossible. We recognise the need to keep the defence of duress within reasonable bounds but cannot accept so severe a restriction upon it. The duty, of the person threatened, to take steps to remove the threat does not seem to have arisen in an English case but in a full review of the defence of duress in the Supreme Court of Victoria (R. v. Harley & Murray (1967) V.R. 526), a condition of raising the defence was said to be that the accused "had no means, with safety to himself, of preventing the execution of the threat".
In the opinion of this court it is always open to the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective, and that upon this being established the threat in question can no longer be relied upon by the defence. In deciding whether such an opportunity was reasonably open to the accused the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon.
In our judgement the defence of duress should have been left to the jury in the present case, as should any issue raised by the Crown and arising out of the Appellants failure to seek police protection. The appeals will, therefore, be allowed and the convictions quashed.
(On the application of Counsel for the Prosecution, the Court certified that a point of law of general public importance is involved in the decision to allow the appeal, viz:
"Whether the Recorder was right in- directing the Jury that even accepting the defence evidence, duress could afford no defence."
The Court further granted leave to appeal to the House of Lords.
The Court also granted legal aid, solicitors and two Counsel, to the Defendants for the purposes of representation in the House of Lords.
