Antar, R v [2004] EWCA Crim 2708

Case No 2003/06830/D2

[2004] EWCA Crim 2708

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 28 October 2004

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE CLARKE

MR JUSTICE GIBBS

and

MR JUSTICE STANLEY BURNTON

Between

R E G I N ACrown

- v -

Between

KAYED KEVIN ANTAR

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

MR A WILLIAMSON and MR S ROBINSON (28.10.04)

appeared for APPELLANT

MR M McDONAGH appeared for CROWN

J U D G M E N T

Thursday 28 October 2004

[1]On 6 November 2003, in the Crown Court at Blackfriars, before Her Honour Judge Woollam and a jury, the appellant was unanimously convicted of one count of conspiracy to rob after a trial which had lasted nine days. On 4 December 2003, he was sentenced to three years' imprisonment. Pierre Aidoo, his co-accused, was convicted of one count of conspiracy to rob and was also sentenced to three years' imprisonment. The appellant now appeals against conviction by leave of the single judge.

[2]The facts may be shortly stated. At about 10pm on Saturday 12 October 2002, the complainants, Christopher Ward, Daniel Taylor and Robert Rickard were waiting at a bus stop in Wickham Lane, London SE2, when they were approached on foot by three young black men, the appellant, Aidoo and another man who was not identified. The appellant was wearing a blue denim jacket and Aidoo was wearing a plastic Halloween mask. Christopher Ward was grabbed around the neck by the appellant, who told him to empty his pockets. Christopher Ward immediately handed over his mobile phone. The co-accused asked Robert Rickard, "What have you got for me?" and then grabbed Robert Rickard's arm and stole his mobile phone. The third man produced a penknife and robbed Daniel Taylor of his mobile phone. At some stage during the offence Aidoo removed his mask. The robbers then ran off on foot. Daniel Taylor went to his house and called the police.

[3]The police later stopped a Ford Fiesta. There were three young black men in the car, the appellant, the co-accused Aidoo, and a third man named Rashid Jagun. There was a plastic Halloween mask on the back seat of the car. Daniel Taylor was taken by police officers to the car. He positively identified the appellant and Aidoo as the robbers. He could not identify Rashid Jagun. All three men were arrested and later interviewed at the police station.

[4]The appellant was interviewed on 13 October. No appropriate adult or solicitor was present, and he was not cautioned.

[5]On 17 January 2003, the three complainants attended an ID suite. The appellant and Aidoo were both positively identified. A fourth suspect took part in the procedure together with Rashid Jagun, but they were not picked out by any of the three complainants. No action was subsequently taken against them.

[6]The prosecution case was that there was an agreement between the appellant and Aidoo to commit the robbery and that both of them intended that the robbery should be carried out. The fact that each of the three men approached a different complainant and robbed him was said to be evidence of planning. It was the prosecution case that the appellant was not threatened into committing the robbery by Rashid Jagun or Aidoo.

[7]The defence case as presented to the jury at the trial was that the appellant had been present at the robbery, but had participated in it under duress from Rashid Jagun, who was an associate of Aidoo. Aidoo had also participated in the robbery. Rashid Jagun had been demanding money from the appellant and had told the appellant that if he participated in the robbery, then he would not have to give Rashid Jagun any further money. The appellant believed that if he did not participate in the robbery, Rashid Jagun would shoot or stab him. Rashid Jagun told the appellant what to say in his police interview.

[8]The appellant also wanted to rely on a psychological assessment by Dr McAnena in support of his defence of duress. Her report concluded that the appellant had a low IQ and demonstrated a level of suggestibility significantly higher than that of the general population. The judge initially thought that Dr McAnena would give evidence, but after hearing her evidence given during a voir dire the judge ruled that her report was inadmissible.

[9]The prosecution admitted that Jagun had previous convictions for destroying and damaging property, affray and failing to surrender to bail. He had also been cautioned by the police for possessing cannabis and for possessing an offensive weapon in a public place.

[10]Aidoo claimed that it was a case of mistaken identification and said that he did not take part in the robbery. The appellant was lying when he said that they had committed the robbery together. Rashid Jagun had not threatened the appellant.

[11]The issues for the jury were, therefore:(1) whether the appellant was telling the truth when he said that Aidoo had participated in the robbery with him;

(2) whether the appellant was or may have been telling the truth about the threats he had received from Rashid Jagun; and

(3) whether, if the threats were genuine, they could afford the appellant the defence of duress.

[12]There is no complaint in this appeal about the summing-up. There are three grounds of appeal: first, that the judge should not have admitted the contents of the appellant's interview by the police; secondly, that she should have severed the indictment so that the appellant and Aidoo were tried separately; and thirdly, that she should not have excluded the evidence of Dr McAnena. There is some overlap between these grounds.

[13]It is common ground that the appellant was not cautioned before he was interviewed, and that no appropriate adult was present. It has been accepted throughout on behalf of the Crown that the failure to administer the caution was a significant and substantial breach of paragraph 10.1 of Code C under the Police and Criminal Act 1984. It is true that the failure was due to oversight on the part of the police and was not deliberate, but the judge held that that was beside the point.

[14]The appellant was born on 29 December 1983. He was thus 18 at the time of the offence and when he was interviewed. He was asked whether he wanted a solicitor present at the interview. He said that he did not. No arrangement was made for an appropriate adult to attend. But although it subsequently transpired that the appellant has a low IQ, it was accepted that the police were not told that at the time and the judge held that they would not normally have thought of providing an appropriate adult.

[15]The potential significance of the interview was not that it contained admissions, but that in it the appellant denied being present at, or participating in any way in, the robbery, whereas at the trial he admitted both the conspiracy to rob and the robbery itself, but said that he took part under duress.

[16]It is important to identify the course of events at the trial and to ascertain, if possible, the case made by or on behalf of the appellant at each stage. As we indicated earlier, the case put to the jury by or on behalf of the appellant was that he was subjected to duress by Rashid Jagun. However, that was not the position throughout. In giving her ruling the judge said that it was the appellant's case that Aidoo had pressurised him into taking part in the robbery. As we read her ruling, the judge made it on that basis.

[17]In his skeleton argument prepared for the purposes of this appeal, Mr Williams submits at paragraph 8 that the judge misdirected herself because her rulings were premised on the basis that it was the appellant's case that Aidoo put him under duress, whereas it was the appellant's case that it was not Aidoo but Jagun (who was not a co-accused) who put pressure upon him.

[18]However, Mr McDonagh says in his skeleton argument at paragraph 9, and indeed told us in oral argument, that it was his understanding, and that of counsel for Aidoo and the judge, at the time that it was the appellant's case that Aidoo was involved in the duress. That submission receives support from paragraph 25 of Mr Williamson's perfected grounds and advice on appeal, which is in these terms:

"It is submitted that it is of significance that in cross-examination Antar played down the threat posed to him by Aidoo. This did not accord with his pre-trial instructions."

In his oral submissions Mr Williamson told us that it was always the appellant's case that he had been pressurised by Jagun. However, as the argument progressed it appeared to us that there had been some confusion and misunderstanding before the judge. Aidoo was a friend of Jagun and the impression gained by Mr McDonagh (and counsel for Aidoo and indeed the judge) was that it was the appellant's case that Aidoo at least played a part in the duress. That is clear from paragraph 25 of Mr Williamson's advice just quoted. It was also the impression gained by the judge, which Mr Williamson did not correct. He accepts that he did not immediately say to the judge that she had mistakenly misrepresented the position at the time. We feel sure that he would have done so if the judge had made a crucial error. We accept that the appellant's instructions were that Jagun was a cause of the duress. Thus the defence statement dated 29 October 2003, which was the day after the judge's rulings on the interview and severance, clearly asserted that the appellant participated in the robbery "under duress from Rashid Jagun, a friend of Pierre Aidoo". The defence statement then gives some particulars of the alleged duress, which we need not quote for present purposes.

[19]There had been a previous unsigned defence statement, but it appears that neither Mr Williamson nor Mr McDonagh had seen it. The resolution of the precise case which was made at the outset is not, however, in our view of crucial significance for the purposes of resolving the issues in this appeal.

[20]The question of whether the interview was admissible arose in this way. At the outset of the trial Mr Williamson submitted to the judge that the contents of the interview were not admissible as part of the Crown case. He says that it was far from clear to him that Mr McDonagh might not seek to adduce it in evidence. However, Mr McDonagh has told us that he did not propose to put the interview in evidence because of the problems posed by the failure to administer a caution. Mr McDonagh certainly told the judge that he took a neutral stance. That is clear from her first ruling. In these circumstances it is curious that the focus of the argument appears to have been on section 78 of the PACE. As we see it, section 78 was something of a red herring. The section gives the court a discretion "to refuse to allow evidence on which the prosecution proposes to rely". The prosecution did not propose to rely on the evidence. Nevertheless, it was that discretion which the judge sought to exercise.

[21]However that may be, the reason why the judge the application did not relate to the proposed use of the interview by the Crown but because counsel for Aidoo told the judge that if the appellant said in the witness box that he was pressurised by Aidoo to commit the robbery, he would wish to cross-examine the appellant by reference to the interview in which he said that he was not present at the robbery at all.

[22]In our judgment the judge was entirely correct to hold that counsel for Aidoo was entitled to cross-examine the appellant on that basis. Indeed, we are not sure that Mr Williamson submits that the judge was wrong so to hold on the footing that the case intimated at that time was that it was Aidoo who had put the pressure on the appellant. In the event, as we understand it, the Crown did not seek to put the interview before the jury. It was put before the jury during cross-examination by counsel for Aidoo after the appellant had accepted in evidence that he agreed to carry out the robbery but that he did so because of pressure from Jagun. Although the appellant did not, as we understand it, implicate Aidoo in the duress, he told the jury that Aidoo participated in the robbery. Given that Aidoo denied that he did so, we can see no objection to Aidoo's counsel being allowed to cross-examine the appellant on his previously inconsistent statement, which was directly relevant both to the appellant's credibility and indeed to the central issue between the Crown and Mr Aidoo, namely whether Mr Aidoo played a part in the robbery. Indeed, we do not understand Mr Williamson to complain about this aspect of the trial. He does, however, complain about the way it was done, to which we will return in a moment.

[23]Mr Williamson focuses on two aspects of the judge's first ruling. The first is the judge's view that it would not be in the interests of justice for separate trials to take place; and secondly, her view that Dr McAnena's evidence would be before the jury.

[24]As to severance, Mr Williamson submits that he had not yet made full submissions on severance at that time. As we understand it, the argument as to the interview took place on Monday 27 October. The judge gave her ruling on the morning of 28 October. No counsel, including Mr Williamson, had prepared skeleton arguments before the judge on 27 October, but Mr Williamson did so overnight between 27 and 28 October. The judge refused to consider the skeleton argument before giving her first ruling, apparently on the ground that it was too late -- the time for skeleton arguments being before the arguments were addressed. Mr Williamson recognises (as he put it in his advice) that inevitably his submissions and those of the other counsel touched on the related topic of severance during the argument on 27 October.

[25]After giving her first ruling, the judge heard submissions on severance. Although the judge did not receive the skeleton arguments, the arguments advanced orally to her were essentially those set out in the written argument. The judge reconsidered the judge that she had expressed in her first ruling in the light of those submissions, but remained of the view that separate trials would not be in the interests of justice.

[26]It is correctly accepted that whether to order separate trials is a matter for the exercise of the judge's discretion. It is further correctly accepted that there is in general a strong public interest in trying co-accused jointly, especially where one co-accused says he was put under duress by another: R v Eriemo [1995 2 Cr App R 206; Archbold 2004 paragraph 1-176. See also R v Cairns

[2003] 1 Cr App R 38

, where it was held that it will be the rare case indeed in which separate trials of defendants charged with conspiracy will be ordered.

[27]However, while recognising that its circumstances were described as "wholly exceptional, if not unique", Mr Williamson relies on R v O'Boyle 92 Cr App 202 as authority for the proposition that the contents of an inadmissible interview may be grounds for ordering severance.

[28]In our judgment there is no basis on which this court can properly interfere with the judge's decision to order the trial to continue jointly. As indicated earlier, the interview was not put before the jury by the Crown or indeed by either the appellant or Aidoo as being exculpatory of either of them. It was simply used to challenge the evidence given by the appellant that Aidoo was not present. We can see no reason why the judge should have ordered severance and every reason why she should not in the interests of justice. Moreover, we see no injustice to the appellant since the full circumstances of the interview could be put before the jury. He had every opportunity to explain the position both in evidence and through counsel.

[29]That is subject to two points taken by Mr Williamson. The first is that it is submitted that the judge should not have allowed the whole of the appellant's taped interview to be played to the jury. Mr Williamson submits that in allowing the appellant's taped interview to be played to the jury, the judge fell into the danger highlighted in R v Clark and Hewins [1999] 6 Archbold News 2 (Ref 97/04882/W3), where it was said: "Where a witness is cross-examined on a previous statement, this should be done selectively and with precision. It is inappropriate to read the witness long extracts from the statement and then merely to ask one or two short questions. Such method .... creates the risk that the jury will muddle the evidence of the witness with what was said on the previous occasion." (See Archbold 2004, paragraph 8-127)

[30]However, each case depends on its own facts. In our judgment, on the facts of this case there was no risk of the jury muddling the evidence of the witness with what was said on a previous occasion. The comparison here was very simple, namely between what the appellant said to the police in a short interview lasting only 25 minutes and what he told the jury. It was a matter for the jury where the truth lay. We see not reason why the jury should not have heard the taped interview and every reason, having regard to the circumstances of the case as a whole, why it should.

[31]We turn to Mr Williamson's second point, which raises the third ground of appeal. At the time of both her first and second rulings the judge thought that the evidence of Dr McAnena as to the appellant's low IQ would go before the jury. In the event it did not because there was subsequently a voir dire in which her evidence was heard in the absence of the jury. We have seen a transcript of it. Mr Williamson submits that the judge was wrong to rule the evidence inadmissible; alternatively that, having done so, she should have reconsidered her decision not to order severance.

[32]As to admissibility, Mr Williamson accepts that it has been held in R v Bowen

[1996] 2 Cr App R 157

that a low IQ per se is not a relevant characteristic on the question whether the objective ingredients of duress are present. But he submits that in that case attention was drawn to a distinction between low IQ and low IQ which amounts to mental impairment. In Bowen the appellant was convicted of obtaining services by deception. In evidence he accepted that he had obtained goods on credit, making few payments. He asserted that he had acted throughout under duress. He had been accosted by two men in a public house, who threatened that he and his family would be petrol-bombed if he did not obtain goods for them. He was told that if he went to the police his family would be attacked. It was contended on appeal that the judge misdirected the jury in relation to the defence of duress and that he had excluded from their consideration characteristics which were relevant to the appellant's ability to withstand threats and pressure. It was held by this court, dismissing the appeal, that "the direction to the jury on the defence of duress involved two objective tests. First, was the defendant impelled to act as he did because he feared death or serious physical injury? Secondly, if so, did the defendant respond as a sober person of reasonable firmness sharing the characteristics of the defendant would have done? As to establishing the relevant characteristics of the defendant to which the jury should have regard in considering the second objective the following principles apply. 1. The mere fact that the defendant is more pliable, vulnerable, timid or susceptible to threats than a normal person are not characteristics with which it is legitimate to invest the reasonable, ordinary person for the purpose of considering the objective test. 2. The defendant may be in a category of persons who the jury may think less able to resist pressure than people not within that category. Obvious examples are age, where a young person may well not be so robust as a mature one; possibly sex, though many women would doubtless consider they had as much moral courage to resist pressure as men; pregnancy, where there is added fear for the unborn child; serious physical disability which may inhibit self protection; recognised mental illness or psychiatric condition, such as post traumatic stress disorder leading to learned helplessness. 3. Characteristics which may be relevant in considering provocation, because they relate to the nature of the provocation itself will not necessarily be relevant in cases of duress. Thus homosexuality may be relevant to provocation if the provocative words or conduct are related to this characteristic; it cannot be relevant in duress since there is no reason to think that homosexuals are less robust in resisting threats of the kind that are relevant in duress cases. 4. Characteristics due to self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be relevant. 5. Psychiatric evidence may be admissible to show that the accused is suffering from some mental illness, mental impairment or recognised psychiatric condition, provided persons generally suffering from such conditions may be more susceptible to pressure and threats, and thus to assist the jury in deciding whether a reasonable person suffering from such condition may be more susceptible to pressure and threats, and thus to assist the jury in deciding whether a reasonable person suffering from such a condition might have been impelled to act as the defendant did. It is not admissible simply to show that in the doctor's opinion a defendant who is not suffering from such illness or condition is especially timid, suggestible or vulnerable to pressure or threats. Nor is medical opinion admissible to bolster or support the credibility of the accused. 6. Where counsel wishes to submit that the accused has some characteristic which falls within (2) above, this must be made plain to the judge. The question may arise in relation to the admissibility of medical evidence of the nature set out in (5). If so, the judge will have to rule at that stage. There may however be no medical evidence, or the medical evidence may have been introduced for some other purpose; for example, to challenge the admissibility or weight of a confession. In such a case counsel must raise the question before speeches in the absence of the jury, so that the judge can rule whether the alleged characteristic is capable of being relevant. If he rules that it is, then he must leave it to the jury. 7. In the absence of some direction from the judge as to what characteristics are capable of being regarded as relevant, the direction approved in Graham

(1982) 74 Cr App R 235

, without more, will not be helpful, especially if there is evidence relating to suggestibility and vulnerability. In most cases, it is probably only the age and sex of the accused that are capable of being relevant. In the instant case the judge's direction had been sufficient. He directed the jury to consider the only two relevant characteristics of sex and age." In giving the judgment of the court Stuart Smith LJ said at page 167 that: 33. "We do not see how low IQ, short of mental impairment or mental defectiveness can be said to be a characteristic that makes those who have it less courageous and less able to withstand threats and pressure."

In giving the judgment of the court Stuart Smith LJ said at page 167 that:

[33]It is plain that evidence is, in principle, admissible to establish what the court described as "mental impairment or mental defectiveness", although these expressions do not seem to us to have an entirely clear meaning. Mr Williamson sought to adduce the evidence of Dr McAnena, who is a psychologist, on that question. In this connection Mr Williamson referred us to two other cases. In R v Masih [1986] Crim LR 395, in the context of a defendant's knowledge of whether or not a complainant was consenting to sexual intercourse, the court said:

"It was unnecessary to determine when, if ever, a defendant whose IQ was above that of a mental defective .... would be permitted to adduce evidence of mental capacity. Generally speaking, if a defendant came into the class of mental defective with an IQ of 69 and below, then in so far as that defectiveness was relevant to the particular case it might be that expert evidence should be permitted about it. That was in order to enlighten the jury on a matter that was abnormal, and therefore, ex hypothesi, presumably outside their experience. If admitted it should be confined to the assessment of the defendant's IQ and to an explanation of any relevant abnormal characteristics which such an assessment involved. However, where the defendant was within the scale of normality (albeit, as the appellant was, at the lower end of that scale) expert evidence was not as a rule necessary and should be excluded."

The expression "mental defective" perhaps now has an old-fashioned ring about it. As we understand it, it does not mean mental illness, but is descriptive of lack of mental capacity, that is mental handicap.

[34]In R v Silcott (Times LR, 9 December 1991), in the context of a submission that a confession should be excluded under section 76 of PACE, Farquarson LJ said:

"It was unfortunate that on the renewed application in December 1988 R v Everett (unreported, July 29, 1988), a decision of the Court of Appeal, was not cited to the court, no doubt because it had not found its way into any law report. It was clear authority that the circumstances to be considered by the trial judge upon a submission under section 76(2)(b) included the mental condition of the defendant at the time of interview and that that decision was taken on the medical evidence rather than the trial judge's own assessment of the defendant's performance in interview. It was true that Everett's IQ was 61 which placed him in the mental defective range, while Raghip's at 74 placed him in the borderline range. But their Lordships were not attracted to the concept that the judicial approach to submissions under section 76(2)(b) should be governed by which side of an arbitrary line, whether at 69/70 or elsewhere, the IQ fell. By section 77(3) of the 1984 Act 'mentally handicapped' included 'significant impairment and social functioning'. The psychological evidence before their Lordships would have been admissible before the trial judge in support of a submission under section 76(2)(b) that the confessions were inadmissible. In their Lordships' view, had it been led before the trial judge, he would have come to the conclusion that the Crown had not discharged the burden of proving beyond reasonable doubt that the confessions were not obtained in consequence of anything said or done which was likely in the circumstances existing at the time to render unreliable any confession."

[35]Mr Williamson relies on those cases partly because of what they say about IQ in order to support his submission in the present context(a) that an IQ of 51 is very low and such as likely to amount to mental defectiveness (if that is the correct expression), and

(b) that whether that was so or not was a decision to be taken on medical evidence rather than on the judge's own assessment of the defendant's performance in interview. Mr Williamson submits that the judge did precisely that in this case and fell into error in so doing.

[36]Dr McAnena wrote a report dated 2 October 2003. It was based on two interviews with the appellant, during which he carried out psychometric testing. In her report she set out her understanding of his education. She said:

"[The appellant] attended Woolwich Poly where he received a lot of one-to-one educational support from a Special Needs teacher and sat GCSEs in English and some other subjects."

The appellant told her that he had achieved a D in English, but could not remember his other grades. He then studied for a GNVQ in Business, which he passed. Until his arrest he had been studying a further business course at a Sixth Form College, but had been unable to complete the course.

[37]The first test which Dr McAnena carried out was the Wechsler Adult Intelligence Scale III (WAIS III), which involved fourteen sub-tests. The test provided a full-scale IQ score of 51, which Dr McAnena said is characterised as "extremely low". At paragraph 9.13 of her report she added:

"This suggests someone who has significant intellectual difficulties. The index scores support this, and reflect the general nature of his difficulties, across various areas of cognitive functioning."

[38]The second test was the Gudjonsson Suggestibility Scale, which Dr McAnena described in paragraph 9.2.1 of her report in this way:

"The Gudjonsson Suggestibility Scale is a test designed to be used in interrogative situations. It comprises two aspects: firstly, the extent to which people 'yield' (that is the number of incorrect answers given as a result of acquiescence with leading questions) in response to a story which is read to them; and secondly, the extent to which people 'shift' (that is alter) their responses to these questions in response to negative feedback about their performance. It is very difficult to fake answers, in either direction, on the test, as it is presented as a simple test of memory."

In this regard she expressed her conclusions as follows: 40. "[The appellant's] scores on both the immediate and delayed recall aspect of this test are extremely low, consistent with his performance on the WAIS-III. His scores on the yield and shift tests are elevated above the norm for court referrals, indicating that he has a much greater tendency to acquiesce to leading questions, and to change his responses under pressure than the general population. Compared with learning disabled offenders, [the appellant] shows an average tendency to acquiesce, and a greater than average tendency to shift his answers in response to perceived pressure to do so. Overall, his total suggestibility score is higher than most learning disabled offenders."

[39]The third test was a Camden Memory Test, to which we need not specifically refer. We note in passing Dr McAnena records the appellant as saying this in relation to the robbery:

".... [he] said that he had been in a car with his friends when the robbery took place. He said that he had tried to leave the scene but that one of his friends had threatened him if he didn't help them. He said they also threatened to hurt his brother, and that he had been scared to go."

[40]Dr McAnena expressed her final conclusions thus:

"11.1 [The appellant] presented as a pleasant young man, who was co-operative and keen to do his best, despite not fully understanding the purpose of the assessment. He clearly has had cognitive difficulties throughout his life, and currently functions cognitively at a significantly impaired level. His IQ level and difficulties in activities of daily living suggest that he could be described as having a moderate learning disability. 11.2 In terms of suggestibility [the appellant] demonstrates a level of suggestibility significantly higher than that of the general population, suggesting that he is likely to agree with leading questions and to change his answers to questions if he perceives even subtle pressure to do so. He displayed a tendency to give the answers he feels are required of him, regardless of the correct response. This is in addition to his difficulty remembering information and answering questions correctly due to his cognitive difficulties."

[41]It appears to us that those test results and Dr McAnena's opinions, first, that the appellant had a very low IQ; secondly, that he functions cognitively at a significantly impaired level; thirdly, that he has a moderate learning disability; and fourthly, that he has a level of suggestibility significantly higher than that of the general population are in principle admissible on the basis of the propositions set out in Bowen, Masih and Silcott. It appears that the trial judge herself took that view at the outset because it was one of the considerations which played a part in her rulings on admissibility and severance.

[42]Why then did she subsequently rule the evidence inadmissible? She did so after hearing the psychologist's evidence on a voir dire, during which she was vigorously cross-examined by Mr McDonagh and indeed asked a number of questions by the judge. By the time the judge heard the evidence of Dr McAnena, she had had the opportunity of hearing the evidence of the appellant as to his education, and generally, and the evidence of Aidoo, one of his peers. The evidence as a whole was that, although the appellant had a low IQ and some learning difficulties, he said in examination in chief that he had GCSEs in English, Maths, Science and Geography, attaining a D and C, and two Ds respectively, although he subsequently said that he was not sure if they were GCSEs.

[43]By the time of the voir dire the judge also heard the way that the appellant answered questions in interview since she, like the jury, had heard the taped interview.

[44]The thrust of Mr McDonagh's cross-examination of Dr McAnena was that the appellant's true IQ must have been significantly greater than 51, given the factors to which we have just referred, among others, but especially his educational achievements. Mr McDonagh, entirely properly, tested the witness' evidence as to the nature of the tests and their results, including the range of IQs which they yielded and the effect of any anxiety or nervousness on the part of the appellant when the tests were carried out. He also cross-examined Dr McAnena as to the possibility of the appellant malingering. Although Dr McAnena accepted that the appellant may have had a mild learning disability, as opposed to the moderate learning disability referred to in her report, and although she made one or two other concessions in the course of her evidence, in our view she by and large stuck to her guns. As we read the transcript, she did not resile from the view as to the suggestibility of the appellant. For example, she said at page 53E-F of the transcript, in answer to a question from the judge, that a person with a low IQ (by which she must have meant a low IQ such as that of the appellant) might be less likely to find a helpful solution to a threat and "more likely to be either passive or aggressive towards it and not able to think through solutions". The judge's view can be seen from some of the questions she put in the following extract:

"JUDGE WOOLLAM: Just once again to go back to the thing that I think perhaps one between the eyes in this case. As far as you are concerned, from what you have sen, there is no contradiction between the boy that you have seen or the man that you have seen giving evidence in this court, answering all the questions, listening to the tape, dealing with what he dealt with on the tape, deciding to lie, as he says, on the tape, all the thing that he has dealt with which is quite s complex series of things and questions. That is perfectly compatible, in your view, with this IQ of 51? This is the thing to me which hits. It completely seems to me to be -- A. Yes. You see, I am not sure how much he did deal with all those things. I think he was probably a passive recipient for a lot of what was going on in the questions."

A little later the judge said: 47. "Well, it seems quite extraordinary that all his friends treated him as normal and he has got four GCSEs and yet we have been told he has got such a low IQ that he is in 1 per cent of the population which must be very low." It is plain that the judge was extremely sceptical as to whether the appellant could, in truth, have had such a low IQ as the psychologist had indicated in the light of her tests.

[45]In the course of her ruling

the judge summarised Dr McAnena's view as follows:

".... [the defendant] has a mild learning disability. She believes that this makes him less able to think rationally, act purposefully and deal effectively with his environment than people with a normal IQ. The defendant's defence is one of duress. He says that he committed robbery because of threats. The question is, is this defendant's mild learning disability a characteristic which the jury should take into account when they are considering the second part of the legal test for duress, the objective part? .... Everybody agrees that it is only if the defendant's condition amounts to a mental impairment that this evidence is admissible. Mr Williamson says that an IQ of 51 is so low that it does amount to mental impairment. The position here is complicated it seems to me by what we have seen of the defendant at the trial and what we have heard about him and his life. He goes to a normal school. He does receive assistance at school but he does also take examinations and some of them he gets through and passes. He went to sixth form college. He did a foundation course in business and finance, trying to get a GNVQ qualification. His aspiration is to work in a bank. His life appears to be perfectly normal. He appears to be unaffected by his learning disability, apart from of course the fact that he needs extra help in support of school. He gave evidence in the case. He gave his evidence well. He answered questions in cross-examination quite normally. He appeared certainly to me to be no different at all from any other defendant. How does all this fit with an IQ of 51? The evidence of our eyes appears to belie that very low IQ. As Mr Williamson says, if this evidence goes before the jury, that will be a difficulty which they will have to deal with. I go back though to the authorities. The authorities make it clear that, as a matter of public policy, it is essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness and this is so for obvious reasons. That a person of reasonable firmness, which is required for the second part of the test, cannot be invested with a characteristic of somebody lacking reasonable firmness. Otherwise, the objective test is simply abandoned. IQ, short of mental impairment, is not relevant, nor is evidence of personal vulnerability or clients seen falling short of psychiatric illness. I take the expression 'mental impairment' to mean something more than simply low IQ. Although I accept that there may be cases where a very low IQ, together with other matters, could amount to mental impairment. I was told [that] psychologists used four different levels to talk about IQ or learning disabilities. There is mild learning disability, moderate learning disability, severe learning disability and profound learning disability. Those are the sorts of levels that are talked about. I accept there may be cases in, say, a sever or profound learning disability which amount to mental impairment. It seems to me that in all the circumstances of this case, the mild learning disability described by the doctor cannot be described as a mental impairment. It follows that the evidence of the psychologist is not relevant to the question that the jury are going to have to determine in applying the test for duress and it follows from that that it is not admissible in evidence."

[46]In our judgment, the problem with that analysis is that it does not take account of the whole of the psychologist's evidence. The judge did not hold that any part of Dr McAnena's evidence was incredible or not such that a reasonable jury could not accept it. She focused on one change in the doctor's evidence, namely the difference from a moderate to a mild learning disability. But, as we read the judge's reasoning, she did not have regard to an important feature of the psychologist's evidence, namely the evidence based on her interview and the tests of the appellant's level of suggestibility. It will be recalled that, on the basis of her report, we concluded that her evidence was admissible not merely on the basis of the appellant's very low IQ, but on the basis of the psychologist's opinion that he functioned cognitively at a significantly impaired level; that he had a moderate (now a mild) learning disability; and importantly, that he had a level of suggestibility sufficiently higher than that of the general population.

[47]We conclude that that evidence was, in principle, admissible. In our judgment the fact that the psychologist changed her evidence from "moderate learning disability" to "mild learning disability" does not alter that conclusion. We have reached the clear conclusion that the judge was wrong to rule the evidence inadmissible. In our judgment, her evidence should have been adduced before the jury, together with all the other evidence that was available. It would then have been a matter for the jury to decide whether or not the second part of the objective test of duress was satisfied on the facts of this particular case.

[48]We accept Mr Williamson's submission that the judge should have revisited her conclusions on severance in the light of her own conclusion, but that is of no real significance in this appeal.

[49]The question, therefore, is whether this conviction is, nevertheless, safe, even though the jury did not hear the evidence of the psychologist. Since we have concluded that these were matters for the jury, although we entirely recognise the force of the points that were put to her in cross-examination by Mr McDonagh and indeed the force of her own conclusion in those passages which we have quoted, we have reached the conclusion that we could not properly say that the convictions were safe. We are inclined to think that the appellant is fortunate, but it is the conclusion we feel bound to reach. It follows that the conviction will be quashed.

[50]The remaining question is whether we should order a retrial?

[51]MR McDONAGH: My Lord, my learned friend and I have tried to calculate how much of the three-year sentence --

LORD JUSTICE CLARKE: Well, he must have served nearly the equivalent of two year sentence, but not quite.

[53]MR McDONAGH: Yes --

LORD JUSTICE CLARKE: He was sentenced on 4 December 2003 and it is now very nearly 1 November 2004.

[55]MR McDONAGH: It is not clear from my papers, nor those of my learned friend, how much time he may have spent in custody. He was on bail for the majority of the time -- certainly he was on bail throughout the course of the trial -- but he lost his liberty for a short period of time. I know my learned friend's instructions are that he will be eligible for release on a tag at the beginning of next year.

LORD JUSTICE CLARKE: That seems quite likely because he would be entitled to be released after 18 months in any event, would he not?

[57]MR McDONAGH: Yes, and of course four months, or part thereof, can be reduced if you release him now and --

MR JUSTICE STANLEY BURNTON: Depending on how he has been conducting himself in prison.

[59]MR McDONAGH: Indeed, and I cannot assist with any difficulty or any good behaviour in that regard. My learned friend may know the position.

LORD JUSTICE CLARKE: Is he otherwise detained in any way, because I think we learned that he had been involved with some other problem.

[61]MR McDONAGH: My Lord, yes, he is currently remanded in custody. He is due to appear before Snaresbrook Crown Court in any event. Whatever your Lordships' rulings are today, he will be returning to Snaresbrook Crown Court for that matter.

LORD JUSTICE CLARKE: There was a kidnapping, is that --

[63]MR McDONAGH: Yes.

LORD JUSTICE CLARKE: That has not come to trial yet?

[65]MR McDONAGH: My Lord, no.

LORD JUSTICE CLARKE: Because that was quite a long time ago.

[67]MR ROBINSON: There have been two abortive trials.

LORD JUSTICE CLARKE: Abortive?

[69]MR ROBINSON: Yes. One went to the jury -- I was not instructed, it was my learned friend Mr Williamson. The first trial was aborted because there was a problem with the co-defendant and the other trial was aborted at the start of the prosecution.

LORD JUSTICE CLARKE: Anyway, we are not directly concerned with that but, whatever the reason for it, the position is that he is in custody in connection with that matter, is he?

[71]MR ROBINSON: If your Lordships feel that you need to be told exactly the date when he would be released in the normal course of events and when he can be released under a tag, then you may wish to adjourn for a short period of time so that those enquiries can be made.

MR JUSTICE STANLEY BURNTON: When is the trial due to take place in Snaresbrook?

[73]MR ROBINSON: I cannot assist, my Lord.

LORD JUSTICE CLARKE: When you say he is going back to Snaresbrook, he would be going back to Snaresbrook to make a fresh application for bail if he was otherwise discharged in this --

[75]MR ROBINSON: Absolutely, but for the offence with which your Lordships are dealing today and the kidnapping, he was of good character. Clearly the outcome of this appeal now is a material change in circumstances which will allow him to revisit the issue of bail. My Lord, to make the appellant's position clear, we submit that it would be unfair in the circumstances for a retrial to be ordered. My instructions are that this appellant is due for release some time in January. His family sit at the back of the court --

LORD JUSTICE CLARKE: That does seem not unlikely.

[77]MR ROBINSON: That being the case, he has served the vast majority of the custodial part of his sentence. Would it be in the interests of justice to order a retrial? In my submission, it would not. If the matter, my Lord, is on a knife-edge as it were, I would ask for the matter to be put over for another date to allow Mr Williamson himself to appear before your Lordships --

LORD JUSTICE CLARKE: I doubt that we would put it off just so that we could have the benefit of the advocacy of Mr Williamson. If we were going to put it off at all, it would be so that we could find out what the facts were.

[79]MR ROBINSON: Yes. When I spoke to him before this hearing, he said that if there was an opportunity to put his representation, he would appreciate it.

LORD JUSTICE CLARKE: Well, perhaps he would, but I think we can muddle along without his advocacy.

MR JUSTICE STANLEY BURNTON: He did not put you in possession of the facts?

LORD JUSTICE CLARKE: Thank you very much. We will retire briefly to consider this. (The court adjourned to confer)

LORD JUSTICE CLARKE: We reiterate our firm view that the appellant is extremely fortunate, but we have nevertheless decided that the public interest does not require a retrial, having regard to all the circumstances, including those just outlined. We do not think there is any need to adjourn the matter further in order to ascertain precisely what the facts are. We are reasonably confident that they must be very close to the facts which have indicated to us. We are very much obliged to you for your assistance. Thank you very much, Mr McDonagh.

[84]MR McDONAGH: My Lord, there is one other matter. Obviously I have taken a careful note. I will have to take instructions -- I am not assisted at court today -- whether anything arises from the judgment and whether those instructing me want to ask for leave to appeal to the House of Lords with a specified question. Clearly the transcript will need to be obtained by those instructing me. I do not know how long that takes, but can I ask for some period of time? It is subject to time limits --

LORD JUSTICE CLARKE: There is a rule, is there not? We understand the force of that, but the time limit is quite short for applications on the part of the Crown. Now that we have announced the decision you have only seven days.

MR JUSTICE STANLEY BURNTON: You need to formulate a question.

[87]MR ROBINSON: I was trying to formulate a question during the course of judgment.

LORD JUSTICE CLARKE: There may be difficulties about formulating the question. The Crown cannot do anything unless we certify. If we certify, we would have to be satisfied that there is an appropriate question to certify, which would involve looking at the question. Your immediate point is that you want to ensure that you have the transcript, if possible, before --

[89]MR ROBINSON: My Lord, yes. I have taken an extensive note.

LORD JUSTICE CLARKE: Page 1072 of Archbold. "An application to the Court of Appeal for leave to appeal to the House of Lords shall be made within the period of 14 days beginning with the date of the decision of the court. The House of Lords or the Court of Appeal may, upon application made at any time by the defendant, extend the time." This court has no power to extend the time in the case of the Crown, but only in the case of an appeal by the defendant. The position is, Mr McDonagh, that if you wish to apply for leave to appeal to the House of Lords, you have fourteen days from today in which to make the application to us.

[91]MR McDONAGH: My Lord, I will have to take instructions. If the transcript could be available, I can speak to the Registrar and get the matter listed.

LORD JUSTICE CLARKE: Yes, you had better take that step. We will direct that the transcript be expedited.

[93]MR McDONAGH: Thank you very much.