Practice and Procedure

R v M (2003)

PUBLISHED March 28, 2003

Where a defence of duress was raised the judge had to give clear directions on the objective/subjective elements of the defence, the jury received insufficient help and the conviction was unsafe.Appeal against conviction with leave of the single judge following conviction of the defendant ('M') on 5 December 2001 at Isleworth Crown Court before HH Judge Katkhuda of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely cocaine. On 9 January 2002 M was sentenced to seven years' imprisonment. On 23 May 2001 customs officers had stopped M at Heathrow airport. They questioned and searched her. Before strip searching her she removed a package from her vagina which contained cocaine. Further packages were found in her shoes. A total of 664 grams of pure cocaine with a street value of ?91,600 was found. M gave a no comment interview on legal advice. It was the prosecution case that M willingly imported the drugs. M's case was that she acted under duress. At trial M gave evidence that she lived in Jamaica with her elderly mother and young daughter. Her mother was sick and she had to pay for her medicine. She was introduced to a man, who she would only name as Wayne ('W') who told her she could pay for the medicine by importing drugs to the United Kingdom. M refused. Later M's mother's illness got worse and W tried again to persuade her to import drugs. M said she would possibly do it. A week later W said the drugs were ready, M refused to do it. W became angry and threatened to kill her, he told her that if she ran away he would kill her mother and daughter. Two days later W came back with another man and M was taken away. M feared that she would be raped and killed. The second man pushed the drugs into her vagina, she was taken to the airport and given a plane ticket. She was told she would be watched on the plane. When M arrived in the UK she thought that customs officers were working for W. She did not go to the police because they were in league with W. When summing up the judge gave directions on duress, first of all orally and then in writing. He stated that the defence of duress would succeed where all of the following five elements were, or might have been, in existence in respect of the offence: (i) if there were threats either to kill or cause serious personal injury to M or to a member of her family; (ii) if M knew or genuinely believed that the threats would be carried out if she did not commit the offence; (iii) if there was no opportunity for M to assert her will not to commit the offence; (iv) if there was no opportunity for M to escape or to seek help; and (v) a person of reasonable firmness would have acted as she did. If the prosecution negated any of those elements then the defence failed. The jury sent a question to the judge asking, in relation to point (iv), whether they had to assess whether there was no absolute opportunity to escape or whether, in her mind, she had no opportunity to escape. The judge just repeated the direction. M appealed on the ground that the direction left the jury in considerable uncertainty as to the correct approach to duress.HELD: (1) There were two limitations to the defence of duress, firstly, if a person was able to avoid duress by escape without harm he must do so, see R v Sharpe 1987 85 Cr App R 207. Secondly, public policy required limitations to the defence of duress by means of an objective criteria, formulated in terms of reasonableness. Duress bore an analogous position with provocation and the law required a citizen to have the steadfastness reasonably expected of him in his situation, see R v Graham (1982) 74 CAR 235. The defence, therefore, involved subjective and objective elements. (2) The limitations and elements of duress were disturbed to an extent by the Judicial Studies Board specimen direction. The jury were seeking explicit and directed help to the objective and subjective divide. Duress was both conceptually for the jury and technically for the judge less easily reducible to expression than other areas of developing criminal law. The jury required not another full direction but an approach to how the evidence related to the law, which, if necessary, would have answered the questions asked. (3) A more helpful direction would have been in these terms: (a) Has the Crown made you sure that she did not believe that unless she committed the offence there was a real possibility of at least serious harm to herself or her child or mother, if yes then she was guilty, if no then go on to ask (b) Has the Crown made you sure that an ordinary person of reasonable firmness, sharing her characteristics, would not in reaction to threats real or perceived have reacted as she did, if yes then she is guilty, if no then go on to ask (c) Has the Crown made you sure that there was a rejected opportunity for her to escape or avoid the threat without damage to herself or to those relatives which a reasonable person, in like situation, would have taken, if yes then she is guilty if no then she is not guilty. (4) The area of objective/subjective relationship, identified by Lord Lane in R v Graham (supra), as "germane" was one on which the jury received insufficient help.Appeal allowed, conviction quashed.