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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v Hammond [2013] EWCA Crim 2709 (18 December 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/2709.html Cite as: [2013] EWCA Crim 2709

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 18th December 2013

1. LORD JUSTICE MOSES: This is an appeal against a decision of His Honour Judge Field at Swindon Crown Court of 25th March 2013, in which he ruled that the applicant could not rely upon what was loosely described as the defence as duress to the charge of breaking prison, contrary to common law.
2. The defendant, a man of 23, serving detention for public protection with a minimum term of 16 months, for making a threat to kill, imposed on 27th February 2006, did not dispute but that he had walked out of Majesty's Prison Leyhill on the 18th September 2012 whilst he was serving that sentence there. He was arrested and at interview said this: that he had been approached by a fellow prisoner who was making sexual suggestions to him and at one stage had put his arms around him and put his hand on what he described as his "arse" and squeezed it. "I walked back to my cell and like I thought, you know, I'm not going to be able to stop myself attacking this man. I can't go to staff because he's best mates with the governor." "But when I'm getting sexually assaulted on the wing he squeezed my arse and things and like the other guy I seriously attacked done less than that. You know I thought I had no choice."
3. In other words the appellant was suggesting that he needed to walk out of prison because he would not be able to resist attacking the man who had made sexual approaches to him. That, it is not contended, was not the defence he sought to put forward.
4. The defence he sought to put forward was set out in the defence statement and radically differed from that which he had told the police on his arrest. It read:

"... the defendant will assert that he escaped from HMP Leyhill because he was under duress at the time from an individual he believes to be named Paul Hunt/Hunter.

This individual had made sexually suggestive/inappropriate comments towards the defendant on numerous occasions prior to his escape. The defendant did inform his psychologist that Paul Hunt/Hunter had made sexually suggestive comments to him.

A few days before his escape Mr Hunt/Hunter told the defendant that if he reported to the authorities that he had been making sexually inappropriate comments towards the defendant he would have the defendant 'taken care of.'.

The defendant took this to be a threat that Mr Hunt/Hunter would at the very least cause/have caused to him serious harm.

The defendant genuinely believed this threat would be carried out having recently been assaulted violently himself at his previous prison, having seen numerous prisoners being assaulted before and believing that Mr Hunt/Hunter was more than capable of carrying/having carried out the threat."

5. The prosecution, represented then as now by Mr Bailey, invited the judge to rule that that defence did not amount to a defence which could properly be laid before the jury. The judge agreed. In a written ruling he pointed out that his understanding of the defence of duress was:

"... it is fear arising from a threat or threats of death or grievous bodily harm, which overbears the wish not to perform an act; here the act is the offence of escaping from prison, and is effective at the time of the act, constraining him; that is this defendant, to perform it; in other words, to escape."

The judge said that after considering the matter carefully and reminding himself of the meaning of duress and the circumstances of the offence the interview and what the judge described as the very different version of events putting the defence case statement I find:

"...as a matter of law this defendant cannot avail himself of the defence of duress ... So I rule in favour of the Crown..."

6. It is important at the outset to remind everyone of the the limited scope for a judge to withdraw a defence from the jury. The issue often arises in circumstances where the defence seek to put forward the defence of duress. It is tempting for a court to believe that the evidence is most unlikely to be of a sufficient cogency or strength, bearing always in mind that the burden is on the prosecution to disprove it and that it is a waste of time and misleading to leave such a defence to the jury. It is in those circumstances that a judge will often be tempted to withdraw such a defence, for fear that the extremely limited circumstances in which it ought to be deployed will become extended by a fanciful or unduly sympathetic verdict from the jury. But the judge must resist that temptation. Whilst the law is that it can only be deployed in limited circumstances, strictly confined, any court comes face-to-face with the difficulty that once the matter is left to the jury, an unduly sympathetic jury might in reality and on the ground extend such a defence far beyond its scope. It is in those circumstances that where the defence is left to the jury it is incumbent upon the judge to give robust and strict directions to the jury to prevent them, so far as it is humanly possible, extending the defence in that way. But nonetheless any court must remind itself of the principles identified in R v Lang [2005] 2 Cr App R(S) No 8, page 136, where, however perverse or absurd the judge thinks that the defence might be on the facts, it is nevertheless incumbent upon him not to withdraw the defence from the jury and not to make up his own mind upon the facts. There is thus a thin line, but a clear line to be drawn between those cases where a judge is entitled to withdraw the defence of duress from the jury and where, on the other hand, he is impermissibly reaching a conclusion on the facts.
7. It seems clear to us that the judge, in his reference to the conflict between what the appellant said in his interview and what he wished to say as revealed in his defence statement may have influenced him in withdrawing the defence from the jury. If that were the case it was wrong of him to do so. The mere fact that he thought that the defence was hopeless, or that because of the conflict between the interview and what was said in the defence statement, the jury were most unlikely to "buy it" was not a basis for withdrawing the defence from the jury.
8. The judge had to consider the facts on their highest as they were put by the defendant because he had not yet had the opportunity of giving evidence. There was no other basis upon which the defence could be considered. Thus, it was incumbent upon the judge to analyse what was said in the defence statement and in those circumstances consider the question whether, if the jury accepted that evidence, it was open to them to acquit this defendant of prison escape.
9. In considering that, he would have to consider the two questions posed by Simon Brown J in R v Martin (1989) 88 Cr App R 343, at page 345, first the question, namely:

"...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 the situation as the accused acted? If the answer to both questions is yes then the defence of necessity would have been established."

10. This is not the case in which it is necessary to analyse the different types of necessity or duress of circumstances, as so clearly identified by Professor Ormerod QC in Smith and Hogan Criminal Law at pages 331 and following. What is necessary is to consider what the defendant himself said in his defence statement. In that defence statement he suggested that the threat that the prisoner would have the defendant taken care of was a threat to kill or cause really serious harm. Let that be accepted for the moment. However, the threat must be imminent or immediate and have been operating on the actions which constituted the criminal conduct, namely the escape from prison.
11. The threat was only to operate if the defendant made a complaint of the sexually inappropriate comments, as they were described in the defence statement. There was no suggestion that the defendant had done so. What he chose to do was to walk out of the prison. He did so apparently to avoid the alternative, namely continuing sexually inappropriate comments, as they are described in the defence statement or, in his favour, let them be put even more highly, the sexual approaches by means of squeezing his bottom or other such unpleasant and certainly unwanted activity.
12. Those sexual advances were miles away from any threat to kill or cause really serious harm bodily harm. We do not want to be understood as saying that the fear of a sexual attack can never be the fear of really serious bodily harm. Obviously, there might be circumstances when they could be, if, for example, one prisoner threatened another with rape. But that is not what was being suggested by this defendant here. He did not suggest that he walked out of prison to avoid that severity of sexually conduct. The highest it can be put is that, faced with what he regarded as the risks he would run were he to report the matter, he was left with the alternative of dealing with these sexual approaches. Rather than dealing with those sexual approaches he chose to walk out of the prison. Let all of that be assumed. That, in our view, is very far from amounting to any form of duress such as to amount to a defence of prison breaking.
13. In those circumstances, whilst we do not endorse the reasoning that the judge appeared to have deployed, we do endorse his conclusion that putting the case at its highest in favour of this appellant, it could not amount to the defence of duress in law and in those circumstances he was entitled and indeed was right to withdraw the defence from the jury.
14. Again, this case highlights the difficulty judges have in drawing the line between the impermissible resolution of a case on the facts and making a ruling as to the law. That is particularly acute in cases of duress. Nothing we wish to say is designed to deter judges from taking a robust and reasoned approach where fanciful defences of duress are raised. But, as we have endeavoured to underline, the judge must be cautious and careful in the reasons that he gives.
15. As it turns out in this case, assuming everything factually in favour of this appellant, he did not raise a defence known to law. In those circumstances, we dismiss his appeal.