Ali, R. v [2008] EWCA Crim 716

Case No 2007/2372/D4

[2008] EWCA Crim 716

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday, 5 March 2008

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE DYSON

MR JUSTICE PENRY-DAVEY

SIR CHRISTOPHER HOLLAND

Between

R E G I N ACrown

Between

ISRAR ALI

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Mr R Rinder appeared for Appellant

Miss C Sjolin appeared for Crown

J U D G M E N T

LORD JUSTICE DYSON:

[1]On 19th April 2007 at Northampton Crown Court the appellant was convicted of robbery and sentenced to five years six months' detention in a young offender institution. He appeals against conviction and sentence by leave of the single judge.

[2]It was not disputed that the appellant had been involved in robbing a Mr Watkinson of a car on 5th December 2005. The defence case in outline was that the appellant acted under duress, the threats being administered by one Bilal Hussein. The defence case was that when he first met Hussein he did not know that he was a criminal. He was later threatened and driven to commit the offence by threats that he received from Hussein. The sole issue for the jury was whether or not the appellant had been acting under duress.

[3]Mr Watkinson gave evidence that he was the co-owner of Hamilton Car Sales. On 5th December 2005 his partner received a call enquiring if a Golf Turbo was for sale. Some 15 or 20 minutes later the appellant and another Asian male arrived and examined the car. The appellant did most of the talking. He made and received calls on his mobile phone. He said that his father was providing the money and he agreed to buy the car subject to a test drive.

[4]Mr Watkinson took them on a test drive with the appellant in the front passenger seat and the other man in the rear. He allowed the appellant to take over the driving and moved into the front passenger seat. The appellant drove for about a mile when his mobile phone rang. He pulled over to make a phone call. The appellant explained that it was his father calling. The rear passenger then held a knife to Mr Watkinson's throat and told him to hand over the mobile phone. He threatened to kill Mr Watkinson unless he got out of the car. Mr Watkinson refused and he received a cut on his chin from the knife. He thought that the man was going to stab him in the neck. The appellant also threatened him and said: "Get out of the car or I'll kill you" or words to that effect. Mr Watkinson did get out of the car. In cross-examination he disagreed that the other male had been in control of the conversation. He said that the driver had made threats whilst the knife was held to his throat.

[5]The appellant described how he had been friendly with Bilal Hussein. Later Hussein, who the appellant knew carried a knife, had assaulted and threatened him and forced him to go out with him. In November 2005 he had been told by him to steal three bottles of Jack Daniels from Asda whilst Hussein waited outside in the car. The appellant had been arrested and received a caution for that offence.

[6]Before 5th December 2005 Hussein had, he said, assaulted the appellant with a baseball bat. He was too frightened to seek medical assistance. On 5th December Hussein and another man whom he had not seen before collected the appellant in a car. Hussein drove them towards Northampton. They arrived at the Hamilton Car Showroom where Hussein told the appellant that they wanted him to drive a car. The appellant was threatened and the other male explained that he had a knife. Hussein called the appellant's phone in the showroom and told him to say that it was his father calling if anybody asked. The male who accompanied him to the showroom pointed to a green Volkswagen and the appellant asked for a test drive. The appellant was "dead quiet" whilst the other man did all the talking and "haggling". The salesman drove the car and pulled over telling the appellant to drive. Hussein called him after a couple of minutes. The appellant pulled over and answered the phone. Hussein said:

"Do it now, do it now, I'm right behind"

. The appellant saw a car parked behind them. The other male in the car pulled out a knife and put it to the salesman's throat. The salesman jumped out of the car. The appellant said nothing as he was "so scared". The other male told him to drive and raised the knife towards him. The male moved into the passenger seat and the appellant drove following directions. The appellant was too frightened to call his family or the police.

[7]Mr Rinder places particular emphasis on the fact that in his interview the appellant said that his parents had told him not to hang around with this man and that his brother had told him to stop seeing them - this was a reference to Hussein and associates of his. In evidence the appellant made it clear that he had known Hussein for many years; but that Hussein had moved away and after returning to the area to live, Hussein had approached the appellant. The appellant said that they had then become friends before any threats were made. The appellant's brother made it clear in evidence that the reason why he did not approve of Hussein was because Hussein did not have a job and this was considered to be unacceptable by their family standards. When questioned by Mr Rinder the appellant denied that he knew Hussein was involved in crime when they first became friends.

[8]There are two grounds of appeal against conviction. They both involve criticisms of the summing-up. The first concerns the directions given by the judge in relation to the issue of duress. The judge said this at page 4C:

"Duress applies, and it may be that one or more of you will want a pen or pencil here to take this down, it applies if a defendant has been impelled to commit the offence, in this case the offence of robbery, by threats of death or really serious injury to himself or members of his family. I repeat that, by threats of death or really serious injury to himself or members of his family. You have to ask yourselves when such a defence is raised was the defendant, or may he have been impelled to act because as a result of what he reasonably believed the threatener had said or done he had good cause to fear that if he did not so act the threatener would kill him or cause him serious injury, or cause serious injury to his family, or kill his family. So that is the essential test for duress, as you have been rightly told already. There is another aspect, several other aspects to it. The threat that I have mentioned, that is to say the threat of death or really serious injury to the defendant or his family, must be immediate to the acts committed. It is essential to the defence of duress that the threat should be effective at the time the crime is committed... Now, there are just two other points here. Firstly, where duress is alleged to have taken place the law requires the steadfastness reasonably expected of an ordinary citizen in this situation... Another point, where duress is raised by a defence, as it has here, it is relevant for you as members of the jury to ask whether the defendant could reasonably have taken evasive action to have got out of this situation..."

We now come to the particular passage of which complaint is made at 5C:

"Now, just one or two matters finally on that. The defence of duress does not apply, does not apply, if the defendant chooses voluntarily to associate with others where he ought to foresee that he might be subjected to compulsion by threats of violence. Again, that is common sense. If you choose to join very bad company, such bad company that you can foresee that you are going to be liable to threats of some kind to do things, then you cannot complain and say I was forced to do them when you had voluntarily associated with those people. Then, finally, as I mentioned to you already, of course the burden of proof is on the prosecution."

[9]At the end of the summing-up, Mr Rinder invited the judge to reconsider what he had said on the subject of bad company and its relation to duress. At page 13F the judge said this to the jury:

"I am going to repeat the direction word for word that I gave you about that: 'The defence of duress doesn't apply if the defendant chooses voluntarily to associate with others where he ought to foresee that he might by such association be subjected to compulsion by threats of violence'. I said to you if you choose to get into bad company you cannot complain and raise the issue of duress. But, of course, when I say bad company that doesn't just mean people who are going about doing bad things, it means people who you should have realised could would be likely to, or may do, subject you to compulsion by threats of violence. That sort of bad company is what we are talking about. So I repeat it once again: 'The defence of duress doesn't apply if the defendant chooses voluntarily to associate with others where he ought to foresee that he might by such association be subjected to compulsion by threats of violence."

The criticism of that direction is two-fold. First, by referring to "falling into bad company", Mr Rinder submits that the judge gave the jury the impression that the appellant could not rely on duress if it was the result of threats made by persons of "bad company". The reference to "bad company", he submits, was particularly unfortunate in view of the fact that the jury were aware that the appellant knew that Hussein did not work and that his (the appellant's) family did not approve of his relationship with Hussein. The jury could have concluded that it was not open to the appellant to rely on duress if Hussein was what one might regard as a generally undesirable person. The second and related criticism is that the judge failed to direct the jury that duress is not available as a defence on the basis of voluntary association if, but only if, the accused voluntarily associates with others who the accused knows are engaged in criminal activity. Mr Rinder points in particular to the judge's failure to make any reference to criminal activity. In short, in view of the concerns expressed by the appellant's family about his association with Hussein, the judge should have directed the jury that they would have to be sure that the appellant had voluntarily associated with Hussein when he knew that Hussein was engaged specifically in criminal activity, not merely that he had been "bad company" or a "bad influence".

[10]The effect of voluntary association on duress was considered by the House of Lords in R and Z

[2005] UKHL 22

[2005] 2 AC 467

. In that case the trial judge had included the following direction in his summing-up (we refer to paragraph 14 of Lord Bingham's speech):

"Did the defendant voluntarily put himself in the position, in which he knew he was likely to be subjected to threats? You look to judge that in all the circumstances... It is for you to decide. It is right to say he says he did stop associating but Sullivan kept finding him. It may not be wholly straightforward. It is for you to consider and it is a relevant consideration because if someone voluntarily associates with the sort of people who he knows are likely to put pressure on him, then he cannot really complain, if he finds himself under pressure. If you are sure that he did voluntarily put himself in such a position, the defence fails and he was guilty. If you are not sure and you have not been sure about all of the other questions, then you would find him not guilty."

[11]The certified question of law in that case was set out by Lord Bingham at paragraph 29:

"Whether the defence of duress is excluded when as a result of the accused's voluntary association with others: (i) He foresaw (or possibly should have foreseen) the risk of being subjected to any compulsion by threats of violence, or (ii) Only when he foresaw (or should have foreseen) the risk of being subjected to compulsion to commit criminal offences, and, if the latter, (iii) Only if the offences foreseen (or which should have been foreseen) were of the same type (or possibly of the same type and gravity) as that ultimately committed."

Lord Bingham answered that question at paragraph 39 in these terms:

"I would answer this certified question by saying that the defence of duress is excluded when as a result of the accused's voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence."

At paragraph 40 Lord Bingham said that the judge's direction, to which we have referred, "involved no misdirection."

[12]The current Judicial Studies Board specimen direction reflects the decision in R v Z. The relevant part of the direction is to be found at paragraph 7 in these terms:

"Did D voluntarily put himself in a position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence (see Note 5)? The prosecution say that he did, by [joining a criminal group the members of which might make such threats][getting involved with crime and thus with other criminals who might make such threats if he let them down or came to owe them money]. But it is for you to decide. If you are sure that D did voluntarily put himself in such a position, the defence of duress does not apply [and D is guilty]. However, if you are not sure that he did so, the defence of duress does apply and you must find D not guilty."

It is true that Lord Bingham refers at paragraph 39 to a voluntary association with others "engaged in criminal activity". That is not surprising because in most cases where A subjects B to compulsion by threats of violence, A is engaged in criminal activity. But as the Judicial Studies Board specimen directions makes clear, the core question is whether the defendant voluntarily put himself in the position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence. As a matter of fact, threats of violence will almost always be made by persons engaged in a criminal activity; but in our judgment it is the risk of being subjected to compulsion by threats of violence that must be foreseen or foreseeable that is relevant, rather than the nature of the activity in which the threatener is engaged. As further support for this, we point out that the direction given by the trial judge in Z made no reference to the nature of the activity in which the threatener was engaged and yet Lord Bingham said in terms that there was no misdirection.

[13]With those observations in mind we turn to the directions of which complaint is made in this case. We agree that if the judge had simply said that the appellant could not rely on duress, if he may have been acting under the compulsion of threats from Hussein in circumstances where the jury considered that the appellant had chosen to join "very bad company", that would have been an insufficient direction. But the judge did not say that. Before he made his reference to "bad company" he said:

"The defence of duress does not apply, does not apply, if the defendant chooses voluntarily to associate with others where he ought to foresee that he might be subjected to compulsion by threats of violence."

He repeated this direction twice at the end of the summing-up. In our judgment that is not a misdirection. In substance it is the same as the first sentence of the Judicial Studies Board specimen direction which, as we have said, contains the core requirement. Moreover, with a substitution of "might be" or "likely" the direction is not materially different from that given by the trial judge in Z. Furthermore, in the sentence which contains the reference to "bad company" the judge added:

"... such bad company that you can foresee that you are going to be liable to threats of some kind to do things..."

Again, although expressed slightly differently, these words capture the essence of the point that has to be made to the jury. Finally, the judge made it absolutely clear at the end of the summing-up what he meant by "bad company". In our judgment there was no misdirection here either. Accordingly we dismiss the first ground of appeal.

[14]The second ground of appeal concerns the way in which the judge dealt with the fact that the appellant has two cautions for theft. The first of these was on 5th October 2004 when he was 17 years of age and the second was on 23rd November 2005. In the course of his evidence-in-chief, the appellant said that the second caution came about as a result of his being forced by Hussein to steal from a supermarket. What the judge said on this topic was this:

"You have heard that the defendant has two cautions for theft. Of course, for you to be cautioned you have to admit the offence. Those two cautions, as you know, one was in October 2004 and one in November 2005. Now, of course, members of the jury, that does not automatically mean that this defendant must be guilty of this offence, of course it doesn't. You will doubtless want to concentrate on the facts relating to this offence and the issues relating to this case in deciding where the truth lies."

Mr Rinder submits that the judge should have given the credibility limb of the good character direction in accordance with the decision of this court in Vye 97 Cr.App.R 134. The credibility limb of the direction is that the jury may take into account a person's good character as going to his credibility. It is submitted that the truthfulness of the appellant's account of his relationship with Hussein and his fear of threats from him lay at the heart of the case. The appellant gave a full account of the robbery in interview and a complete and largely consistent account of these events at the trial. Since the jury only had his word on which to base their decision as to whether he was telling the truth about the nature and substance of the duress he claimed to have suffered, Mr Rinder submits that a direction on credibility was crucial.

[15]Immediately before closing speeches counsel had submitted to the judge that, even if he was unwilling to give the propensity limb of the good character direction, the judge should at least give the credibility limb. The judge said that he was unwilling to do so. The appellant had two convictions for offences of dishonesty. One was for an offence committed shortly before the robbery; the other pre-dated the appellant's involvement with Hussein. The judge took the view that the appellant was not of a good character and that he was not entitled to the good character direction. Mr Rinder makes the point that the cautions were given when the appellant was very young, that he had not concealed his cautions, in fact he had disclosed them to the jury in his evidence-in-chief, and that they were unrelated to the index offence.

[16]In our judgment the judge was entitled in the exercise of his discretion to rule that the appellant was not entitled to either limb of the Vye direction. The cautions had been put before the jury by the appellant. In these circumstances the judge did the best he could to be fair to the appellant and directed the jury that the cautions did not make the appellant guilty of the instant offence and that they should concentrate on the facts and the issues in the case. It is true that a caution is not the same as a conviction. Nevertheless it reflects the commission of an offence. In this case the appellant had two convictions for offences of dishonesty. He was, in our view, plainly not entitled as of right to the credibility limb of the Vye direction. As to whether the judge should have exercised his discretion to give that direction, we have been referred to previous authorities, in particular the decisions in Martin

[2000] 2 Cr.App.R 42

and Keith S (unreported). We have found the decision in the second of these cases of particular assistance. The judgment of the court was given by Roch LJ. It gave some guidance as to how the discretion should be exercised where a defendant has cautions but no convictions. The court said this:

"36. The essential question will always be: what is the character of the defendant? Would the giving of a good character direction mislead the jury? The process of cautioning is merely the evidential route by which the commission of one of more offences by a defendant is established. If a defendant has been cautioned, then, on the face of it, he has committed that he has committed that offence. ... 38. It is for the trial judge to rule on that issue. The judge has a discretion. No doubt, if the caution was for a completely different type of offence, the commission of which would not cast doubt on the defendant's veracity, or where the offence was committed a long time ago, or the offence, although similar to that charged, was quite trivial, the judge might rule that the fact of the caution should not be disclosed and give the appropriate character direction. 39. Equally, if there is evidence, for example, from the record of the interview with the defendant, which preceded the caution, that the defendant had not made a full admission, or that pressure had been applied, or some inducement had been held out to him, the judge would not allow evidence of the caution to be adduced."

In this case, as we have said, the two offences for which the appellant had been cautioned were both for offences of dishonesty. In other words they were offences which would cast doubt on his veracity. Moreover, they were offences of the same character as the index offence, namely offences of dishonesty. They were also offences which had been committed in the reasonably recent past. In these circumstances, the judge was entitled to take the view that the appellant was not a man of good character and therefore not entitled to either limb of the good character direction. The judge had a discretion. His exercise of that discretion would only be disturbed by this court if it was plainly wrong. Far from being plainly wrong, we think that it was clearly right.

[17]Accordingly, for these reasons, we dismiss the second ground of appeal against conviction and the appeal against conviction is therefore dismissed. (There followed an appeal against sentence)

LORD JUSTICE DYSON: We now turn to the appeal against sentence. The facts we have sufficiently related already. The appellant is now 20 years of age. We have referred to his two previous cautions. The judge did not have a pre-sentence report. In passing sentence the judge said that the appellant was not entitled to any credit for a guilty plea. He did not accept the suggestion put forward on the appellant's behalf that he had shown any remorse; the appellant was more concerned with escaping liability. The jury had rejected his defence of duress and the judge was satisfied that he had told a pack of lies to the jury and had played a full part in what had been a planned robbery. He and his companions had travelled from Birmingham armed with a knife and the appellant had given the signal to his companion to put it to the victim's throat. When the victim struggled he had been cut. It must have been a terrifying experience. The judge bore in mind the appellant's age, background and the references, but the court was under a duty to pass deterrent sentences to protect the public. The judge then said that, if the sentence was reviewed by this court, we should remember that the judge had not only heard the evidence but had seen the victim, who was obviously seriously affected by what had taken place.

[19]Mr Rinder submits that the sentence of five years six months was manifestly excessive. He draws attention to the guidance given by the Sentencing Guidelines Council for a Level 2 category of offence such as this where a weapon is produced and used to threaten and/or force is used which results in injury to the victim. The bracket for adults (those aged 18 or over) is two to seven years, with a starting point after trial of four years. Mr Rinder makes the point that the appellant was only 18 at the time of the offence and 19 at the date of trial. He also urges upon the court a number of points in mitigation: his age, the fact that he has no previous convictions for offences of violence, that he apologised for what happened during the course of his evidence, that the property was returned and that he was not the main planner of this criminal enterprise.

[20]We treat some of those points with a good deal of scepticism. The apology does not sit well with the fact that he did not plead guilty and the judge who had the benefit of seeing and hearing him give evidence concluded that he had shown no remorse. Nor does the point that he was not the principal mover of this enterprise sit well with the comment made by the judge to which we have just referred. He was well-placed to form a view as to the role of the appellant. We do take account, however, of the fact that he is a young man and he has no previous convictions for offences of violence.

[21]Nevertheless, this was a very serious offence involving the threat and use of a knife to commit a robbery. The victim of the robbery, hardly surprisingly, was terrified by what happened. We accept that the sentence of five years six months was a severe sentence, but the judge made it clear that he was deliberately passing a severe sentence in order to deter others from carrying out similar criminal activity. Although this is a severe sentence, we are not persuaded that it is manifestly excessive and we accordingly dismiss this appeal against sentence.