B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE TAYLOR
and
MR. JUSTICE McCULLOUGH
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R E G I N A
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v.
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PAUL ANTHONY GRAHAM
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(Transcript of the Shorthand Notes of Walsh, Cherer & Co. Ltd., 36/38,
Whitefriars Street, Fleet Street, London, EC4Y 8BH. Telephone Number: 01-583 7635.
Shorthand Writers to the Court).
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MR. M. KENNEDY Q.C. and MR. A. TAYLOR appeared on behalf of the Appellant.
MR. M. SHERRARD Q.C. and. MR. J. CURTIS appeared on behalf of the Crown.
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HTML VERSION OF JUDGMENT
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THE LORD CHIEF JUSTICE: On 11th September 1980, at Maidstone Crown Court, the appellant was convicted of murder, before Purchas J. and a jury, and was sentenced to life imprisonment.
He now seeks to appeal against that conviction.
The facts of the case were as follows. The appellant was the victim's husband. He is a practising homosexual. His wife was aware of this and indeed at the material time they were living in a bizarre menage a trois with another homosexual called King. There were living in the flat above two other homosexuals, named Gillis and Minter, with whom the appellant occasionally had sexual relations. The appellant and King were jointly charged with the murder. King pleaded guilty. The appellant admitted playing an active part in the events leading to the killing and admitted seeking to conceal the killing after it had happened.
His defence was twofold. First, that he lacked the necessary intent, and he drew attention particularly to the drink and drugs he had taken; and, secondly, that whatever his intentional actions may have been, they were performed under duress because of his fear of King.
We are satisfied that the directions given to the jury by the learned judge, on the issues of murder and manslaughter, on joint enterprise and on the relevance of drink and drugs to those issues, were impeccable. Other minor complaints made in the notice of appeal are also without foundation. The only live issue is, as Mr. Kennedy concedes, whether the direction to the jury on the question of duress was correct.
The evidence relevant to this issue was this. The appellant had suffered for some time from an anxiety state. He was taking Valium tablets on prescription. There was medical evidence to the effect that valium, if taken in excess, would make him more susceptible to bullying, but that by mid-1980 he would have developed some tolerance to the drug. King was said to be a man of violence. There was evidence of altercations. In 1978 King had tipped the appellant and his wife off a settee because they were embracing and he was jealous. The appellant, it seems, knew of another incident in 1978 when some other woman had been assaulted by King and had had ribs broken. In June 1980, said the appellant, King had "swiped him over the head".
On Friday, 27th June, 1980, the day before the killing, King attacked the wife with a knife. The appellant intervened and, for his trouble, cut his finger when he tried to grab the knife. As a result of this incident, the wife on the following day left and went to the appellant's mother's home. The appellant and King stayed behind and, together with the man Gillis, occupied their time in the flat drinking, talking and indulging in homosexual activities. The appellant said that he had a lot to drink during this time and had taken Valium tablets in excess of the quantity which had been prescribed for him. He also said that during the time that the three were together, he thought that King was going to attack him with a knife, but the incident came to nothing. Gillis left soon after midnight.
King then suggested getting rid of the wife once and for all. The two of them hatched a plan. The appellant telephoned his wife in the small hours, told her falsely that he had cut his wrists and asked her to come home at once. Meanwhile, King bandaged both of the appellant' wrists and he, the appellant, lay face down on the floor pretending to be seriously hurt. When the wife arrived, she knelt down beside the appellant to see how he was. King had the flex from a coffee percolator in his hands. He attempted unsuccessfully to put it round the wife's neck while she was kneeling. The appellant and his wife then both got up and King said: "What's it feel like to know that you are going to die, Betty?" That remark was repeated. King then put the flex round the wife's neck and pulled it tight, hauling her off her feet onto his back as if she were a sack of coals. She put her hands up to the flex at her neck, whereupon King told the appellant to cut her fingers away. The appellant said in evidence that he picked up a knife but could not bring himself to use it. King thereupon put the wife on the floor, still holding the flex. He told the appellant to take hold of one end of it. The appellant said in evidence that he did so. He added that it was only in fear of King that he complied with the order. He said that, in any event, the plug at the end of the flex which he was holding came off as he exerted pressure on it. If that were the case, it would remain in doubt whether the appellant's act made any contribution to the death. It should, however, be noted that in the voluntary statement, which he made to the police, he had admitted pulling on the flex for about a minute. Whatever the precise sequence of events, it was beyond doubt that the ligature around the wife's neck was responsible for her death.
Thereafter, the appellant helped King to dispose of her body by wrapping it up, carrying her out of the flat and dumping it over an embankment. Each of the two men then took one of her earrings; the appellant rifled her handbag for anything he could find of use, and spread the rest of the contents near her body to make it look as though she had been robbed. He then made telephone calls suggesting that she had gone missing.
The prosecution at the trial conceded that, on those facts, it was open to the defence to raise the issue of duress. In other words, they were not prepared to take the point that the defence of duress is not available to a principal in the first degree to murder. Consequently, the interesting question raised by the decisions in DPP for Northern Ireland v. Lynch (1975) A C 653; 61 Cr. App. R. 6, and Abbott v. R. (1976) 3 All E R 140; 63 Cr. App. R. 241, was not argued before us. We do not have to decide it. We pause only to observe that the jury would no doubt have been puzzled to learn that whether the appellant was to be convicted of murder or acquitted altogether might depend on whether the plug came off the end of the percolator flex when he began to pull it.
There are other possible aspects of the defence of duress which do not arise for decision in this case, namely: (1) Whether in murder, duress, if available, excuses a defendant from criminal liability altogether or only reduces his offence to manslaughter. (2) Whether in murder a fear of physical injury (rather than one of death) can ever amount to duress. (3) To what extent fear of death or injury to persons other than the defendant may be relied upon. (4) Whether a fear of false imprisonment may be relied upon.
The direction which the learned judge gave to the jury required them to ask themselves two questions. First, a subjective question which the learned judge formulated thus: "Was this man at the time of the killing taking part.....because he feared for his own life (or) personal safety as a result of the words or the conduct.....on the part of King, either personally experienced by him, or genuinely believed in by him.....". Neither side in the present appeal has taken issue with the learned judge on this question. We feel, however, that, for purposes of completeness, we should say that the direction appropriate in this particular case should have been in these words: "Was this man at the time of the killing taking part because he held a well-grounded fear of death (or serious physical injury) as a result of the words or conduct on the part of King?" The bracketed words may be too favourable to the defendant. The point was not argued before us.
The learned judge then went on to direct the jury that if the answer to that first question was "yes", or "he may have been", the jury should then go on to consider a second question importing an objective test of reasonableness. This is the issue which arises in this appeal. Mr. Kennedy for the appellant contends that no second question arises at all; the test is purely subjective. He argues that if the appellant's will was in fact overborne by threats of the requisite cogency, he is entitled to be acquitted and no question arises as to whether a reasonable man, with or without his characteristics, would have reacted similarly.
Mr. Sherrard, for the Crown, on the other hand, submits that such dicta as can be found on the point are in favour of a second test; this time an objective test. He argues that public policy requires this and draws an analogy with provocation. He submits that while the learned judge was right to pose a second question, he formulated it too favourably to the appellant. The question was put to the jury in the following terms: "Taking into account all the circumstances of the case, including the age, sex, sexual propensities and other characteristics personal to the defendant, including his state of mind and the amount of drink or drugs he had taken, was it reasonable for the defendant to behave in the way he did, that is to take part in the murder of his wife.... as a result of the fear..... present at the time in his mind.....The test of reasonableness in this context is: would the defendant's behaviour in all the particular circumstances to which I have just referred reflect the degree of self control and firmness of purpose(which) everyone is entitled to expect that his fellow citizens would exercise in society as it is today. "
If the references to drink and drugs had been omitted, the judge's phraseology would have been in line with the direction given in cases of provocation. (See DPP v. Camplin (1978) A C 705; 67 Cr. App. R. 14 and Newell (1980) 71 Cr. App. R. 331). By using those words the learned judge introduced, says Mr. Sherrard, transitory factors and self induced factors peculiar to the appellant and having no place in an objective test.
There is no direct binding authority on the questions whether the test is solely subjective or, if objective, how it is to be formulated. The point did not arise for decision in Lynch, but Lord Wilberforce (at 61 Cr. App. R. 21 and (1975) A. C. 683) cited, with apparent approval, "as a statement of principle" a passage from the judgment of Rumpff J. in Goliath (1972) (3) SA1, which included the following words: "It seems to me to be irrational.....to exclude compulsion as a complete defence to murder if the threatened party was under such a strong duress that a reasonable person would not have acted otherwise under the same duress".
A little later Lord Wilberforce went on: "The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt and particularly for setting the standards by which the law expects normal men to act. In all such matters as capacity, sanity, drunkenness, coercion, necessity, provocation, self-defence, the common law, through the judges, accepts and sets the standards of right thinking men of normal firmness and humanity at a level at which people can accept and respect. "
Lord Morris (at 61 Cr. App. R. 10 and (1975) A. C. 670) referred to, "The standards of honest and reasonable men" of which the law should take account.
Lord Edmund Davies (at 61 Cr. App. R. 43 and (1975) A. C. 711) referred, with apparent approval, to a passage from the judgment of Murnaghan J. in Attorney General v. Whelan (1934) I. R. at page 526, as follows: "Threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. "
Lord Simon mentioned "subjectivity", but only in relation to belief in the existence of the threat, not in regard to the defendant's conduct in reaction to the threat.
In Archbold 40th Edition, paragraph 1449e, it is stated tentatively that the threats must be "of such gravity that they might well have caused a reasonable man placed in the same position to act as he did. "
Smith and Hogan Criminal Law (4th Edition) state the law in this way (at page 205): "Subjective or objective? Since duress is a concession to human frailty and some are more frail than others, so, it is arguable, the standard should vary. Probably, however, the standard of resolution and fortitude required is fixed by the law. It is for the law to lay down standards of conduct. Under provocation, D must display "a reasonable degree of self restraint. When actually attacked, D may use only a reasonable degree of force in self-defence. In blackmail, P is expected to display a measure of fortitude and not to be affected by trivial threats. Probably, then, a person under duress must display reasonable fortitude and has no defence unless the threat is one which might have affected a reasonably resolute man. "
The Law Commission in their report on Defences of General Application (Law Com. No. 83) at paragraph 2. 28 make the following observations: "It may be said that the whole test as to whether the requirements of duress exist should be subjective, but we feel that this would create too wide a defence.
" Serious personal injury can cover a wide range of threatened harm, and if the defence is to be available even in respect of the most serious offences, it would be unsatisfactory in the final event to dispense with some objective assessment of whether the defendant could reasonably have been expected to resist the threat. The solution which is adopted by section 2. 9 (1) of the American Law Institute's Model Penal Code is to provide that the threat of unlawful force (which is left undefined) must be that 'which a person of reasonable firmness in his situation would have been unable to resist. ' Whether the words "in his situation' comprehend more than the surrounding circumstances, and extend the characteristics of the defendant himself, it is difficult to say, and for that reason we would not recommend without qualification the adoption of that solution. We think that there should be an objective element in the requirements of the defence so that in the final event it will be for the jury to determine whether the threat was one which the defendant in question could not reasonably have been expected to resist. This will allow the jury to take into account the nature of the offence committed, its relationship to the threats which the defendant believed to exist, the threats themselves and the circumstances in which they were made, and the personal characteristics of the defendant. The last consideration is, we feel, a most important one. Threats directed against the weak, immature or disabled person, may well be much more compelling than the same threats directed against a normal healthy person.
As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self-control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one.
It follows that we accept Mr. Sherrard's submission that the direction in this case was too favourable to the appellant. The Crown having conceded that the issue of duress was open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows: (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing? The fact that a defendant's will to resist has been eroded by the voluntary consumption of drink or drugs or both is not relevant to this test.
We doubt whether the Crown were right to concede that the question of duress ever arose on the facts of this case. The words and deeds of King relied on by the defence were far short of those needed to raise a threat of the requisite gravity. However, the Crown having made the concession, the learned judge was right to pose the second objective question to the jury. His only error lay in putting it too favourably to the appellant.
The appeal is dismissed.
MR. SHERRARD: Will your Lordships order that the respondent's costs be paid out of central funds?
THE LORD CHIEF JUSTICE: Yes.
