Brandford & Ors, R. v [2016] EWCA Crim 1794

[2016] EWCA Crim 1794

Case No 201600971C2, 201602700C2, 201601496C2, 201601490C2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT WOOLWICH

Her Honour Judge Downing

T20147604

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 02/12/2016

Before

LORD JUSTICE GROSS

MR JUSTICE GREEN

HER HONOUR JUDGE MOLYNEUX

(SITTING AS A JUDGE OF THE CACD)

Between

REGINARespondent

OLIVIA BRANDFORDAppellants

MICHAEL KAREMERAAppellant

DEAN ALFORDAppellant

John Clifford and James Dick appeared for Crown

Jeminipe Akin-Olugbade appeared for Appellant Olivia Brandford

Alexander Radley appeared for Appellant Michael Karemera

Yogain Chandarana appeared for Appellant Dean Alford

Hearing Hearing dates : 16 November, 2016

Judgment Approved

INTRODUCTION

[1]The appeal against conviction principally concerns the Judge’s decision to withdraw a defence of duress from the jury.

[2]On the 28th January, 2016, in the Crown Court at Woolwich before HHJ Downing, Olivia Brandford (“Brandford”) now aged 20, Dean Alford (“Alford”) now aged 21 and Michael Karemera (“Karemera”) now aged 22, were each convicted on two counts (count 1 concerning cocaine and count 2 concerning heroin) of Conspiracy to Supply Controlled Drugs, contrary to s.1 of the Criminal Law Act 1977.

[3]On the 26th February, 2016, before the same Judge, they were sentenced as follows: i) Brandford, 28 months’ detention on count 1; 28 months’ detention on count 2, concurrent; a total of 28 months’ detention. ii) Alford, 11 years’ imprisonment on count 1; 11 years’ imprisonment on count 2, concurrent; a total of 11 years’ imprisonment. iii) Karemera, 10 years’ imprisonment on count 1; 10 years’ imprisonment on count 2, concurrent; a total of 10 years’ imprisonment.

[4]Various other orders were made to which it is unnecessary to refer. There were a number of co-accused to whom it is likewise unnecessary to refer.

[5]Brandford appeals against conviction and sentence by leave of the Single Judge. Alford and Karemera renew their applications for leave to appeal sentence, following refusal by the Single Judge.

THE FACTUAL HISTORY

[6]For present purposes, the facts may be shortly summarised. The police operation was named “Operation Pibera”. The offending concerned the supply and distribution of Class A drugs in the London Borough of Lewisham. A county drugs line was run between Lewisham and Portsmouth and a number of runners were used to distribute the drugs as couriers or street dealers. A number of defendants were involved and a number of trials took place. Brandford, Alford and Karemera were tried alongside one other co-defendant.

[7]Alford, Karemera and another controlled the drugs networks in Kent and Hampshire. Brandford was Alford’s partner prior to and at the time of the offending. The couriers travelled to London on a regular basis to exchange money or drugs. The activity was linked to telephone numbers known as “MITCH”, “DUFFY” and “FLY”. Alford controlled the DUFFY line and another line. Karemera controlled the MITCH line. Police surveillance showed that Alford and Karemera rarely travelled to Portsmouth. They ran the lines remotely and recruited “runners”, who were mostly under 18.

[8]On the 27th August, 2014, the police stopped a car in Portsmouth, driven by Alford. Brandford was in the passenger seat. She spoke to the police and began to cry. She was plainly distressed. Both she and Alford were arrested. In the event, it was found that she was concealing drugs in her vagina. A concealed package was subsequently seized. It was a sausage shaped item with three smaller packages wrapped in cling film inside. Each package contained a number of wraps; in total there were 121 - 77 contained crack cocaine; the remaining 44 contained heroin. The street value of the drugs was between £1,500 and £2,300. The car was searched and within it, the police found £295 cash, two rolls of cling film and a wrap of cocaine. When interviewed, Alford answered no comment to all questions. Brandford relied on a prepared statement, denying any involvement as a willing participant in a conspiracy to supply drugs – and indicated that she would not disclose any information due to a fear of repercussions. When he was interviewed, Karemera answered no comment to all questions.

[9]At trial, the prosecution case was that Brandford was involved in the conspiracy. It did not matter that she might only have become aware of it on the night before her arrest, namely, the 26th August, 2014. By agreeing to carry the drugs for Alford, she did an act which went to assist the conspiracy. The prosecution relied further on telephone calls made by Alford from prison – in order to establish that Alford was attempting to persuade Brandford as to the contents of her defence statement.

[10]The defence case was that Brandford was told by Alford that he had inherited a debt from Gus Allman (“Allman”), a friend of his who had been murdered and had been forced to supply Class A drugs. He sought her help on the basis that his life would be at risk if the drugs were lost. Brandford further relied on her own previous good character.

[11]As the Judge had withdrawn Brandford’s defence of duress from the jury (see below), the issue for the jury – and subject to criticism of the Judge’s direction in this regard (also below) – was whether the prosecution had proved that Brandford was a participant in the conspiracy.

[12]It may be noted that at trial, both Alford and Karemera relied on the defence of duress. Their evidence was that due to the mistaken belief that they had been involved with Allman, they had been threatened and assaulted by the “Peckham Boys Gang” and compelled to sell drugs. As will already be apparent, their defences were rejected by the jury and they, together with Brandford, were convicted.

[13]Some brief further reference to the evidence will assist with the context. First, Brandford was aware of Alford’s conviction in 2013 for dealing in Class A drugs. She encouraged him to go straight and to seek employment. On her evidence, he had neither the funds nor the trappings of a significant drugs dealer. So far as he was involved in drug dealing, she had thought he was a cannabis dealer.

[14]Secondly, on Alford’s evidence, it was asserted that he and Allman (someone with whom Alford had dealt drugs) had been involved with someone called “Killer”, who threatened and assaulted Alford. In January 2014, Killer had been upset that the line had not been well managed over the Christmas period. The upshot was that Alford was assaulted at an address in Peckham in January 2014; he was pepper sprayed (“the January pepper spray incident”), kicked and punched and knives were brandished by a number of young men who had entered the flat in question. Brandford had been in a separate room in the flat and eventually came to collect him; he said that she had been threatened outside the flat. According to Brandford’s evidence, she subsequently saw one of the men she recognised from the flat and he said to her “that’s what you get when you fuck with us”. Alford told her that this was an argument which had got out of hand. Her evidence was that she only half believed him.

[15]Thirdly, it was common ground that Allman had been murdered in February 2014. Alford had lied to the police during the murder investigation which resulted in a conviction for perverting the course of justice. Alford was already serving a sentence of imprisonment for that offence, when he came to be sentenced for the present offending.

[16]Fourthly, on the 9th June 2014, Alford was told by Killer to meet Karemera on Deptford High Street. When he did so, a man suddenly approached them and stabbed him (“the June stabbing”). According to Brandford, she never asked Alford why he had been stabbed; his mother told him it was a random attack. She was not convinced and thought it might have had something to do with Allman’s death.

[17]Fifthly, according to Brandford, on the drive to London on the 26th August, 2014, he opened up to her and said that the January pepper spray incident or the June stabbing (it remains unclear which) and the Allman murder (in February) were connected. It was only that night she realised this and that he was dealing in class A drugs.

[18]Sixthly, according to Alford’s evidence, on the 26th - 27th August, 2014, he did not threaten Brandford in any way. He did, though, tell her that he was to go to Portsmouth to sell drugs. He had a lot to carry and she could help him. He told her that Killer had told him he could not afford to lose any drugs. He asked her to carry the drugs internally for him; his life depended upon it. She offered to assist. Cross- examined on behalf of Brandford, Alford did not accept that he had pressurised Brandford into carrying the drugs. He had told her of his problems. They discussed the matter and he considered that she had agreed to do it to assist him. He explained to her that the situation was dangerous; he did not follow her suggestion of going to the police. On the journey, they stopped at an address in Portsmouth; he there divested himself of the drugs he had been carrying (secreted anally).

BRANDFORD: APPEAL AGAINST CONVICTION

[19]We turn to Brandford’s appeal against conviction, which may conveniently be considered under two broad headings: i) The correctness of the Judge’s ruling withdrawing Brandford’s defence of duress from the jury (“Issue I: The Judge’s ruling”); ii) The Judge’s direction to the jury, subsequent to her ruling (“Issue II: The Judge’s direction”).

Issue I: The Judge’s ruli ng

[20](1) The Ruling: The Judge gave an extended ruling on the 18th January, 2016 (“the Ruling”). The Judge began by underlining that Brandford had not been “physically forced” to secrete the drugs; she had done so at the “urgent request” of Alford. She had no defence to the conspiracy charges “outwith the defence of duress”. Brandford’s defence was different to that advanced by Alford. He had been physically threatened and assaulted. Brandford’s case was that:

“ …on the night of 26 August 2014 …Alford told her of the duress under which he was agreeing to deal the drugs and had been for some considerable time and that she was so fearful that she agreed to transport drugs on his behalf.”

[21]On the drive from Kent to London on the 26th August, Alford’s account was that he had said to Brandford that he had to do something for someone and that:

“ If he didn’t do it, it would not be nice for him.”

Brandford said that Alford had broken down and was very emotional. He knew why Allman had been killed and why he (Alford) had been stabbed on 9th June. The threats to which he was subject involved harming him, his family and Brandford. The drive continued until they stopped at a hotel in Peckham.

[22]At the hotel, he told her that he had been dealing in drugs – but she thought it had been cannabis. At all events, he was away for a while and then sent her a text requiring her to obtain gloves plus cling film and small plastic bags. He was very specific that the gloves had to be thin latex, not washing up gloves. She obtained these items, returned to the hotel and spent some two hours watching Alford cut and wrap the drugs. She said she was shocked and sat silently; she understood from Alford that they had to take the drugs outside London. It was too much for him to carry and if he could not get it there “something bad would happen to him”. That could be anything; in her evidence in chief she said it could be stabbed or killed. She said she did not really want to do it but if there was “….any risk of bad things” happening to Alford or his family she would. She tried to persuade Alford to go to the police and toyed with the idea that her father could lend the money to “buy these people off”. Alford then showed her how to insert the packages in her vagina in a manner which would escape initial detection at a strip search. The following morning she reinserted the drugs in her vagina, while Alford secreted other drugs anally; the two then set off for Portsmouth. Brandford maintained that but for fear of injury to Alford or his family, she would not have carried the drugs.

[23]The Judge was concerned as to whether Brandford could rely on the threats made to Alford, of which she had no first-hand knowledge at all; the Judge referred to this, by way of shorthand, as “hearsay duress”. Having reviewed the various (largely uncontroversial) elements of duress, certain of the authorities and the arguments addressed to her, the Judge remarked that a very great deal of time had been spent on the relationship between Brandford and Alford and that on the 26th and 27th August, 2014, Brandford had been obsessed, in love or infatuated with Alford. The Judge then said this (at pp. 16-17 of the Transcript):

“ The question that I have sought to deal with is whether the existence of the relaying of a threat from a third party makes a critical difference. I reach the view that there is a basic incompatibility and a basic irreconcilability between the pressure based upon love and the exploitation of a relationship and the ability to convince a loved one to act in a particular way and the fear that a defendant who is threatened directly and acts as a result of duress. One is giving in to the pressure based on a multitude of mixed emotions and feelings for somebody. The other, and this lies at the very heart of duress, is simple fear and the proof of simple fear that goes to overbear the independent will of an otherwise law-abiding person who decides and agrees to a commit a serious criminal offence. I judge that there is that incompatibility. The more that I have looked at the notes of evidence and considered the emphasis of Ms Brandford’s evidence, it is to me crystal clear that what we have heard….is the evidence of a young woman who would have done anything for …Alford, the man she loved and believed loved her, and the threat was something of a secondary matter. ”

[24]Ultimately, the Judge’s key conclusions were expressed in the following passage of the Ruling (at pp. 22-24 of the Transcript):

“ I do not accept that the mere fact of the reasonableness of Ms Brandford’s belief in what he [Alford] was telling her is sufficient to permit of the defence. I am of the view that the overbearing of the will sufficient to justify this, as it were, closely-guarded and rarely exercised defence is sufficient to justify this or indeed any offence of like seriousness. In my judgment, such a defence can only arise and be left to the jury when it arises from the first hand experience of the defendant who relies upon it. I cannot accept that without that immediate contact the defendant can form the view that this is a bona fide threat to kill or maim, nor of course that the reasonable person of ordinary firmness would respond to the threat by committing the serious offence without first being satisfied themselves from their own experience that it was realistically and likely to be carried out. The defendant asks the court under the defence of duress to excuse serious crime on the basis that they believed they had no alternative. How can the defendant from such a view without sight of the aggressor or knowledge? No names were ever given to Olivia Brandford and none repeated by her. Whether they would have meant anything to her is a moot point, but in the absence of any evidence that …Alford gave her chapter and verse e.g. of …Allman’s attackers or the regular attention that Killa …had lavished on him, the weakness of her position is…made clear and the distinction of what is duress and what is merely reported speech is highlighted. I pose again the question: how can the defendant reasonably form a view that such threats exist by the medium of [a] third party when the most that she is told is the almost coded quotes, ‘It would not be nice for me’. Bearing in mind that ….Alford and …Karemera both gave evidence to the effect that the loss of drugs would in fact result in a period of further drug dealing…. I see no reason why one should immediately infer that the ‘not nice’ was any more than …Alford anticipated a further period under the subjugation of Killa dealing drugs on the streets of Portsmouth or Folkestone. ”

[25]Two final passages from the Ruling should be recorded. First,

the Judge said this as to hearsay (at p. 26 of the Transcript):

“ We are a legal system that leans heavily against hearsay. Whey then should we extend to the drug runner or the robber or the bomber the luxury of being able to form a view based upon the threats of a man or men they have never seen or heard, but exclusively upon the word of a defendant who has a vested interest, as here, in convincing the dupe that they must assist?...”

Secondly, as to policy,

the Judge made clear her views (at p. 29 of the Transcript):

“….that the policy considerations in allowing such a defence of duress to be run by the girlfriend of somebody who is dealing drugs, albeit as he says under duress, the effects are easy to see. I have no doubt whatsoever that were such a defence to be successfully argued then there would be no hesitation in drug dealers duping young women, young men, friends or whoever into carrying drugs in this particular way and, thereby, continue to frustrate the legitimate aims of the police in bringing to a conclusion the pernicious trade of the dealing in class A drugs.”

[26]Accordingly, the Judge withdrew Brandford’s defence of duress from the jury.

[27](2) The rival cases: For Brandford, Mr Akin-Olugbade submitted that the Judge was wrong to conclude that the threat/s constituting duress had to be conveyed directly to the defendant; nothing in the authorities precluded “hearsay duress” (to use the Judge’s shorthand). Putting that point to one side, the Judge had erred in withdrawing the defence of duress from the jury. As someone of previous good character, there was force in the point that Brandford would not have committed the offence but for threat to Alford of which she spoke. There was no or no real dispute that Brandford believed a threat had been made to Alford – and it was in any event striking that Alford’s defence of duress was left to the jury but not Brandford’s. Whatever the comment that could be made as to Brandford’s naivety or infatuation in hitherto discounting the January pepper spray incident, the Allman murder and the June stabbing, it was only the night before the events of 27th August that matters had come together and she realised the extreme capacity for violence of those whom she believed were threatening Alford. Because she had not appreciated the position until the night before, any suggestion of voluntary association failed. In any event, all these matters were for the jury; the Ruling had usurped the province of the jury.

[28]For the Crown, Mr Clifford did not seek to defend the Judge’s exclusion of “hearsay duress”. As he put it, the Judge’s reasoning may have been “imperfect” but it made no difference to the result. The Judge was in any event entitled to withdraw the defence of duress from the jury because even on the best view of Brandford’s evidence, such threat as there was, was neither immediate nor almost immediate. It was conveyed the night before in London; there was no immediate threat to Alford that night and none at all to her; by then, she knew precisely what he was doing (dealing in Class A drugs) but went through with it; even on the next day, there was the drive to Portsmouth and an intermediate stop where Alford disposed of his drugs but she continued to carry hers. In any event, she was more than simply knowingly a girlfriend of a drug dealer – consider her actions in buying him the latex gloves and watching him parcel up the drugs on the night of 26th/27th August. Overall, this was a plain case of voluntary association. The jury was bound to convict.

[29](3) The legal framework: We begin by venturing an outline of the law of duress, so far as relevant for present purposes, before returning to certain matters arising out of the Ruling.

[30]First, by its nature, “Duress affords a defence which, if raised and not disproved, exonerates the defendant altogether”: Lord Bingham of Cornhill, in R v Hasan

[2005] UKHL 22

;

[2005] 2 Cr App R 22

, at [19]. For obvious reasons of policy, the defence is to be narrowly and carefully confined: see further, Hasan, at [21] – [22].

[31]Secondly, the accepted test for duress was formulated by Lord Lane CJ in R v Graham

[1982] 1 All ER 801

, subsequently approved in R v Howe

[1987] AC 417

. As helpfully set out in Blackstone (2017), at A3.37, it provides 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 [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 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 [the threatener] said or did by taking part [in the offence]? ”

[32]By way of amplification: i) Only a very limited category of threats qualify. Traditionally, the threat relied upon has been confined to causing death or serious injury: Hasan, at [21]. It seems settled that the threat of damage to property will not suffice. In Dao

[2011] EWCA Crim 1717

, at [33] and following, this Court expressed a provisional (and obiter) view that a threat of false imprisonment, without an accompanying threat of death or serious injury, would not suffice. ii) Threats are, however, not confined to those directed to the defendant. They may be directed to a member of his immediate family or a person for whose safety the defendant would reasonably regard himself as responsible: Blackstone, at A3.36. iii) As is apparent, both from the requirement of reasonable belief in limb (1) of Lord Lane’s formulation and the question of the reaction of a sober person of reasonable firmness contained in limb (2), there is a strong objective element in the defence. iv) There is authority that if or when limb (2) of Lord Lane’s formulation is reached, it is, save exceptionally, an issue for the jury: R v David Lyness

[2002] EWCA Crim 1759

, at [24] – [25].

[33]Thirdly, the threat must carry with it immediacy; otherwise a defendant may find it impossible to dispute his ability to take evasive action. As expressed by Lord Bingham, in Hasan (at [28]):

“ …It should …be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged. ”

Duress must never be allowed to be an “easy answer”: Hasan, at [26].

[34]Fourthly, it is now settled law that “a person cannot rely on the defence of duress if he has voluntarily by association with others exposed himself to the risk of such duress (e.g., by joining a criminal organisation or gang)”: Blackstone, at A3.44. In his speech in Hasan, with which the majority of the House agreed, Lord Bingham (at [29] and following) cast the net of voluntary association deliberately wide. Thus (at [37]):

“ Nothing should turn on foresight of the manner in which, in the event, the dominant party chooses to exploit the defendant’s subservience. There need not be foresight of coercion to commit crimes….”

Voluntary association was emphatically not confined to “…foresight of coercion to commit crimes of the kind with which the defendant is charged…”: ibid.

[35]Continuing, Lord Bingham (at [38]) dealt with the question of whether the defendant’s foresight must be judged by a subjective or objective test – and favoured an objective test:

“ ….i.e., does the defendant lose the benefit of a defence based on duress only if he actually foresaw the risk of coercion or does he lose it if he ought reasonably to have foreseen the risk of coercion, whether he actually foresaw the risk or not? ….. The practical importance of the distinction in this context may not be very great, since if a jury concluded that a person voluntarily associating with known criminals ought reasonably to have foreseen the risk of future coercion they not, I think, be very likely to accept that he did not in fact do so. But since there is a choice to be made, policy in my view points towards an objective test of what the defendant, placed as he was and knowing what he did, ought reasonably to have foreseen. …..The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them….”

[36]Fifthly, where there is evidence sufficient to raise an issue of duress, the burden is on the prosecution to disprove it to the criminal standard: Hasan, at [20].

[37]Sixthly, however, where no reasonable jury properly directed could fail to find the defence of duress disproved, the Judge is entitled to withdraw it from the jury. As Laws LJ trenchantly observed, in R v Bianco

[2001] EWCA Crim 2516

(at [15]):

“ ….[Counsel] says that there should be no minimum evidential requirement for a defence to be left to the jury. It is certainly true that once a defence such as duress is left to the jury then it is for the Crown to disprove it to the criminal standard. In our judgment if the case is one where no reasonable jury properly directed as to the law could fail to find the defence disproved, no legitimate purpose is served by leaving it to the jury. It is not generally within a jury’s constitutional function to arrive at what ex hypothesi would be a perverse result in circumstances such as these. There must at least be some evidence upon which a jury could properly conclude that the defence of duress had not been negatived. ”

Laws LJ immediately went on (at [16]) to distinguish the situation arising where a defence of duress is not left to the jury from that arising where a

Judge purports to direct a jury to convict:

“ It seems to us that issues arising in relation to a judge’s decision to direct the jury to convict a defendant are qualitatively of a different nature from those arising here. In the present case, albeit that duress was in truth the only issue of substance for the jury, there was no question of taking the case away from the jury’s hands in its entirety – the question was whether, upon the evidence that had been led, there was an issue for the jury to consider in relation to duress. The withdrawal of a case altogether from a jury seems to us to be a different matter and to engage constitutional considerations that do not arise in a case such as the present. For those reasons we do not consider that the appellant is assisted by the authority of Gent [i.e., R v Gent (1989) 89 Cr App R 247]. ”

[38]Plainly, the power of a Judge to withdraw a defence from the jury is to be exercised with caution. As Moses LJ put it in R v Hammond

[2013] EWCA Crim 2709

, at [6] and [14], there is a thin but clear line between “…the impermissible resolution of a case on the facts and making a ruling as to the law.”

[39]Reverting to the Ruling in the light of this review of the legal framework for the defence of duress, a central feature was the Judge’s treatment of “hearsay duress”. With respect, we are unable to accept that the Judge’s focus on “hearsay duress” was well-founded. i) Though the terminology, “hearsay duress”, was used simply as a shorthand, it is, with respect, best avoided. Not least, the evidence went to Brandford’s belief that threats had been made to Alford, whether such belief was reasonable and her reaction thereto, rather than to the truth of the contents of any such statements. If that be right, then this was most likely not “hearsay” at all: Subramaniam v Public Prosecutor

[1956] 1 WLR 965

, at p.970. If so, then the shorthand is liable to confuse more than assist. ii) It is striking that amongst the limits on duress canvassed in the authorities to which we have referred, the indirect relaying of a threat is nowhere mentioned. For our part, we can envisage a situation where a threat is indeed very real, regardless of the fact that it is indirectly relayed. Take a threat made to a hypothetical D and her family by a messenger from an organised crime group, conveying a threat from a “crime boss” or the equivalent passing on of a threat from an emissary of a terrorist group. In our judgment, the question is not whether the threat was directly or indirectly relayed which is of significance, so much as its immediacy, imminence, the possibility of taking evasive action, the question of whether D reasonably believed the threat, his/her response to that threat and questions as to the response of a sober person of reasonable firmness sharing D’s characteristics. It is very likely that the more directly a threat is conveyed, the more it will be capable of founding a defence of duress: e.g., the telling example of the loaded pistol in the back, given by Lord Simon of Glaisdale in Director of Public Prosecutions for Northern Ireland v Lynch

[1975] AC 653

, at p. 687. Conversely, the more indirectly the threat is relayed the more, all other things being equal, a defendant will struggle to satisfy the requirements of the defence, or (put in burden of proof terms) the more readily the prosecution will disprove it. However, the mere fact that the threat was conveyed indirectly does not seem to us to constitute a fatal bar to the defence. All must depend on the circumstances, of which the manner in which the threat is conveyed is but one, however important it may be. iii) Such treatment as there is in the authorities as to the indirect relaying of threats appears to support this analysis. For instance, in R v Hudson and Taylor

(1972) 56 Cr App R 1

, the threat in question was made to Hudson, who passed it on to Taylor: see, at p.2. The decision in Hudson and Taylor was disapproved in Hasan (at [27]) – but on other grounds, essentially going to the opportunities available to avoid complying with the threat. iv) So too, in R v Safi (Ali Ahmed) and Others

[2003] EWCA Crim 1809

;

[2004] 1 Cr App R 14

, where the Court was concerned with the hijacking of an aeroplane leaving Afghanistan and ultimately arriving in England. The issue on which the appeal was allowed was the confusion between the existence of the threat in fact and the reasonableness of a belief in the threat. However, in powerful observations and relevant to this discussion, whether or not technically obiter, Longmore LJ said this (at [28]): “ If, moreover, Mr Houlder’s submissions were correct, hearsay evidence of the existence of a threat would, strictly, be inadmissible. Yet in cases of duress it is routinely admissible as evidence of the defendant’s state of mind. In Subramaniam v Public Prosecutor…the Privy Council held that what was said to the defendant was admissible to show that he had good reason to fear death or personal injury; there can be no reason to suppose that such evidence could not also be admissible to show the defendant’s state of mind in relation to the existence of a threat or other circumstance giving rise to a defence of duress. To adopt Rose LJ’s example, if Anne Frank would have been entitled to invoke the defence of duress before the Gestapo knocked on her door, it might very well be because a sympathiser had informed her that the Gestapo were on their way.” v) It is to be emphasised that in differing with the Judge’s approach in this respect, we are not in any sense widening the scope of duress, something we would be loath to do. Instead, we are proceeding in accordance with authority, focusing on the well-established inquiries as to the reasonableness of belief in the potency, imminence and immediacy of the threat – rather than the precise means by which it was conveyed.

[40]In one other respect too, we are unable to accept the Judge’s reasoning. As will be recollected, the Judge spoke of “a basic irreconcilability” between (in short) the pressure based on a relationship and the fear that lies at the heart of duress. The two plainly are different. The first exploits affection or infatuation. The second is based on fear. Mere pressure based on the exploitation of a relationship but without a relevant threat of death or serious injury of sufficient potency, will clearly not found duress. That said, they are not necessarily irreconcilable and, in some circumstances, may operate in a cumulative manner. Consider, for example, a credible threat of death to a husband, conveyed also and directly to the wife. The husband then exploits his relationship with his wife to overcome her resistance to committing with him a serious crime to avoid the threat being carried out. Obviously questions remain as to whether the wife comes within the two limbs of Lord Lane CJ’s test for duress (supra). But the relationship between pressure and the fear founding duress are not, as it seems to us, necessarily irreconcilable. They are, however, very different.

[41](4) Discussion: It follows that the Judge’s reasoning for not leaving Brandford’s defence of duress to the jury cannot be supported. The question which next arises is whether the Judge was nonetheless entitled to withdraw duress from the jury. The test is as stated in Bianco, supra, at [15]: was this case one where no reasonable jury properly directed could fail to find the defence disproved? In answering that question, the possibility of a perverse verdict must be left out of account; as Laws LJ said in Bianco (ibid), it is not the jury’s constitutional function to arrive at a perverse result.

[42]It may be noted that the inquiry is essentially the same as that undertaken by this Court when considering on appeal the safety of a conviction in circumstances where there has been some error at trial. This Court asks whether despite that error the jury must have convicted; if yes, the conviction is safe; if no and thus even if a jury may very well have convicted, the appeal must be allowed.

[43]Accordingly, if our answer to the question before us is that the Judge was not entitled to withdraw the defence of duress from the jury, no separate question would remain as to the safety of the conviction – we would effectively have answered that question in Brandford’s favour.

[44]A defence should not lightly be withdrawn from the jury; it is of the first importance that Judges do not usurp the jury’s function. The thin but clear line articulated in Hammond (supra), at [6], must not be crossed – indeed the temptation to do so should often be resisted. A decision to withdraw a defence from the jury on faulty reasoning, requires particularly careful scrutiny before it can be upheld – not least, when, as here, it was in substance the only issue in the case. On the other hand, Judges should not be deterred from a “robust and reasoned approach where fanciful defences of duress are raised”: Hammond, at [14].

[45]In our view and after the most anxious scrutiny, this is one of those, perhaps rare, cases where the Judge was entitled to withdraw Brandford’s defence of duress from the jury, because, on orthodox principles governing this carefully confined defence, the jury was bound to find it disproved. We reach this result by reference solely to limb (1) of Lord Lane CJ’s test in Graham (set out supra), acknowledging as we do that, if limb (2) had been reached (which, in our view, it was not), the matter should have been left to the jury. We regard it as fanciful that Brandford was compelled by fear to carry the drugs on the 27th August. In our judgment, the jury would have been bound to find the defence disproved on grounds both of want of immediacy and voluntary association. That Brandford may very likely have acted out of love, infatuation or under pressure from Alford does not avail her as the circumstances fell well short of the exacting requirements of the defence of duress.

[46]Our reasons are these: i) We assume in Brandford’s favour that she was entitled reasonably to believe that there had been a threat to Alford; furthermore, that the coded threat to Alford, “If he didn’t do it, it would not be nice for him”, in context, carried the threat of, at the least, serious violence. We are further prepared to accept that the threats extended to harming Alford’s family and Brandford herself – though their principal target appeared to be Alford himself. Even if the threats were confined to Alford and his family, we would not exclude the defence of duress on that ground – they were sufficiently close to Brandford to be capable of coming within the ambit of the defence of duress. Thereafter, we part company with the defence case. ii) On Brandford’s evidence, she was told of the threat/s on the drive to London on the 26th August or, at latest, in London that evening. Even on Brandford’s account, there was vagueness in the threat – she was never given the names of those making them. The threats were only ever conveyed indirectly, via Alford. He himself did not threaten her and no one whom she believed wasthreatening him ever directly threatened her. There was plainly no immediate threat on the drive or in London that evening. In London, she was able to go out – on her own – to purchase the latex gloves and other items. Over that night, she watched Alford prepare the drugs. She suggested going to the police but neither she nor Alford acted on this suggestion. She contemplated her father paying off those threatening Alford – thus necessarily accepting that there was an opportunity to contact him. The next day, the 27th August, she and Alford were not under any immediate threat on the drive from London to Portsmouth. They were further able to stop, to enable Alford to dispose of the drugs he was carrying. Still, Brandford persisted in carrying the drugs. Taking Brandford’s evidence at its highest but having regard to the tenor of Lord Bingham’s speech in Hasan (supra) at [28], together with his disapproval of Hudson and Taylor (Hasan, at [27]), these threats simply lacked the immediacy to preclude Brandford taking evasive action, most obviously by going to the police. The inescapable inference is that she persisted out of love, infatuation or under pressure from Alford – but without the foundation of immediate threat essential for the defence of duress. Again, as observed in Hasan (at [26]), duress must never be allowed to be an “easy answer”. iii) Furthermore, Brandford’s evidence encounters acute difficulty in dealing with her longstanding association with Alford and her reaction to the threats. On her account, it was only on the night of the 26th August that she believed the prior events – the January pepper spray incident, the February murder of Allman and the June stabbing – to be connected. Hitherto, her evidence was that she had “half believed” Alford as to his explanation of the January pepper spray incident and was “not convinced” that the June stabbing was a random attack. But, nonetheless, her conduct is consistent only with her not being unduly fearful following this series of alarming incidents. If that be so, then it is simply fanciful to suggest that Alford’s linkage of these incidents on the night of the 26th August was such as to compel her to commit a serious criminal offence on the next day and to prevent her from seeking assistance from the police or otherwise. iv) If, per contra, the January, February and June incidents could not be lightly brushed aside, then, in our judgment, Brandford’s defence of duress was doomed to fail on the ground of voluntary association. As seen from Hasan (esp., at [37] – [38]), the test is objective. Associating with those amongst whom over a period of 8 months there occurred the January pepper spray incident, the Allman murder and the June stabbing, Brandford must have appreciated that with serious violence as the norm or a regular feature, the risk of coercion was self-evident. Nevertheless, Brandford remained the partner of Alford, knowing of these incidents together with his earlier conviction in respect of class A drugs. As Lord Bingham said in Hasan (at [38]), the policy of the law must be to discourage association with known criminals and “should be slow to excuse the conduct” of those who do. Again, in our judgment and on this ground, the jury could only have reached a conclusion unfavourable to Brandford. v) We have not overlooked the fact that Alford’s and Karemera’s defences of duress were left to the jury. No issue is before us and we express no view in this connection. Suffice to say that even if it could be said that the difference of treatment was, at first blush, odd, the defence of duress failed in both their cases so that no injustice was conceivably caused to Brandford in consequence.

[47]For the reasons given, we dismiss the ground of appeal based on the Judge withdrawing Brandford’s defence of duress from the jury. Once the matter is addressed on orthodox principles, we are amply satisfied that the jury was bound to find the defence disproved.

Issue II: The Judge ’s direction

[48]For Brandford, Mr Akin-Olugbade had a second string to his bow. Under this heading, he submitted that the Judge had erred in law by directing the jury (summing- up, at Transcript IId, pp. 140 – 143) to convict Brandford; she had failed to leave the application of the law to the facts to the jury.

[49]The point is a short one. There is no dispute as to the law. Whereas a Judge has a duty to direct an acquittal where there is no evidence before a jury which would justify them in convicting a defendant and it would be perverse for them to do so, there is no converse rule (save perhaps in a wholly exceptional case of which this is not one) empowering a Judge to pre-empt the jury’s verdict by directing them to convict: R v Gent (supra); R v Wang

[2003] EWCA Crim 3228

, esp. at [12].

[50]We can understand the concerns underlying Mr Akin-Olugbade’s submissions and confess to some anxiety in this regard. With great respect to the Judge, the passage – which it is unnecessary to set out in full – could and should have been otherwise worded to obviate such concerns. However, at the very outset of the relevant passage (IId, p.140 C-E),

the Judge said this:

“ It is…in law, the case that no judge can direct a jury to convict a defendant in their charge, and it is the right of every defendant, however compelling or overwhelming the case against them to have the prosecution prove the case and a jury consider and return the verdict, whatever that verdict may be.”

Against this background and notwithstanding the somewhat infelicitous language which followed, we cannot read the passage as a whole as directing a conviction. We read it instead as the Judge setting out the consequences in law of the defence of duress having been withdrawn from the jury, in circumstances where duress had been Brandford’s only defence.

[51]Accordingly, we dismiss this ground of appeal and thus Brandford’s appeal against conviction as a whole.

THE APPEAL AND APPLICATIONS CONCERNING SENTENCE

[52]Regrettably, no sentencing transcript was available. We have therefore relied on the submissions and notes made available to us by counsel.

[53](1) Brandford’s appeal: It would appear that the Judge treated Brandford as having played a “significant role” within the meaning of the Guideline and came within Category 3 thereof. She had willingly acted as a courier, carrying 121 wraps of class A drugs, in the knowledge that they would be sold on the streets of Portsmouth. She had made no attempt to contact the authorities and had not been directly threatened.

[54]It would be quite wrong to minimise the seriousness of the offending. This was a major class A drugs conspiracy and no such conspiracy can operate without the work of couriers such as Brandford.

[55]That said, Brandford was only involved in the conspiracy on a single occasion and for a very short duration; she was of previous good character; as already discussed, the effective cause of her involvement was that she was the dupe of Alford or under some pressure from him to assist, albeit falling well short of duress. She was very young at the time (18 years old).

[56]In our judgment, in all the individual circumstances of Brandford’s involvement in this case, there was room to pass a lower sentence, so that, with respect, the sentence passed was manifestly excessive. Even assuming that Brandford’s role was significant (rather than “lesser”) and that this was a Category 3 case, we think that here the correct sentence should have been at or slightly below the bottom of the Category range. We quash the sentence of 28 months passed and substitute a sentence of 21 months detention. To such extent Brandford’s appeal against sentence is allowed. We add that too much time has elapsed for suspending the sentence now to be a viable option.

[57](2) Renewals of applications for leave to appeal sentence: Alford and Karemera. As we understand it, the Judge treated Alford and Karemera as playing significant roles, within the meaning of the Guideline and, given the scale of the organised crime network, they straddled Categories 1 and 2. The dealing was on a commercial scale; it had taken place over an extended period and it involved the use of young and vulnerable individuals. They each had management and organisational roles in the conspiracy.

[58]In the case of Alford, he had control over the telephone lines mentioned earlier and a number of bank accounts had been used to launder the proceeds. In addition, various aggravating factors were present. He had previous convictions for drug dealing and perverting the course of justice. He had used or pressurised Brandford. While on remand, recorded telephone calls showed that he sought to pressurise Brandford into giving false evidence. He had also used a person under the age of 18 to act as a drugs runner. The Judge added an “extra” year, so increasing his sentence from 10 to 11 years’ imprisonment, in respect of Alford’s involvement of Brandford in the conspiracy and his previous convictions.

[59]As to Karemera, he had operational control of one of the telephone lines and substantial links and influence on others in the chain. He had also used a person under the age of 18 to act as a courier.

[60]For Alford, Mr Chandarana submitted that the sentence was manifestly excessive. The Judge had erred by according to him an excessive role in the conspiracy; there were others above him in the organisation. Additionally, even though the defence of duress failed, the Judge was wrong to discount completely the coercion or pressure he was under. Further, the Judge erred in adding the “extra” year to Alford’s sentence in respect of his involvement of Brandford and his previous convictions. Further still, the Judge had not taken account of his personal mitigation, not least his youth (19/20) at the time of the offending. Finally, the Judge had not taken proper account of totality – given the sentence Alford was already serving for perverting the course of justice (referred to above).

[61]For Karemera, Mr Radley submitted that the sentence was manifestly excessive. In his case too, despite the defence of duress failing, the Judge erred in discounting completely the coercion or pressure he was under. The Judge was wrong to suggest that he had supplied “muscle” to the conspiracy. Furthermore, his role in the conspiracy had been overstated. He had no previous convictions for drugs offences. The Judge had failed to take his personal mitigation into account.

[62]There is nothing in either of these applications. The Single

Judge said this when refusing them on the papers:

“ Dean Alford… …There is no proper basis for criticising the Judge for taking a starting point of 10 years. As she indicated, yours was a role which was at least at the top end of significant, and this was a conspiracy for extensive Class A drug dealing over a lengthy period, which fully justified putting it within Category 2. Your offending was aggravated by your previous conviction for dealing and by your involvement of Olivia Brandford, whose evidence the Judge was entitled to accept. The Judge was also entitled to reject, as she did, the assertion that you acted under any form of duress or coercion. It is not arguable that a sentence of 11 years was manifestly excessive. Nor is there any merit in your argument about totality. The determinate sentence which you were serving for perverting the course of justice was for quite separate criminality, and the effect of making the 11 year sentence concurrent was to give a small, but sufficient, reduction for totality. Michael Karemera… …. There is no proper basis for criticising the Judge for taking a starting point of 10 years. As she indicated, yours was a role which was at least at the top end of significant, and this was a conspiracy for extensive Class A drug dealing over a lengthy period, which fully justified putting it within Category 2. Your offending was aggravated by your recruitment of couriers as young as 15. The Judge was also entitled to reject, as she did, the assertion that you acted under any form of duress or coercion. It is not arguable that a sentence of 10 years was manifestly excessive.”

Michael Karemera…

[63]These observations succinctly cover the ground. We agree entirely and add only this. In the case of Alford, the Judge was amply entitled to increase his sentence to 11 years’ imprisonment from 10 years’, on account of the aggravating factors referred to. The allowance for totality was likewise ample; the Judge would have been entitled to pass consecutive sentences but took the better course of not doing so. As to Karemera, it matters not whether he provided “muscle” or not; his role in the organisation was such that no complaint can be made of the sentence passed. On any view, it is not arguable that either of these sentences was manifestly excessive. Both these applications are dismissed.

POSTSCRIPT

[64]We voice here two concerns; neither had any bearing on our decisions on the appeal and applications – but are both of some significance more generally.

[65]First, the length of the trial. After a plethora of pre-trial hearings, it would appear that the trial took some 54 days. We apportion no blame (if individual blame there was) but are troubled. This is not an advertisement for how the Criminal Justice System should work.

[66]Secondly, the length of written submissions from counsel. In respect of Brandford, we were provided with a 39 page submission for the conviction appeal and a further 15 page submission for the sentence appeal. In respect of Alford’s renewed application for leave to appeal sentence, we received a 26 page submission (incorporating 7 pages of transcription of the judge’s sentencing remarks) plus a 9 page addendum. Karemera’s renewed application for leave to appeal sentence generated a 27 page submission. Written submissions of this length are, with respect, unnecessary, unhelpful and, in our view, unacceptable. It is much to be hoped that this issue will soon be addressed, robustly.