Antar, R v

Expert psychological evidence is admissible in principle on a defence of duress where it supports a finding of mental impairment, such as significantly impaired cognitive functioning, learning disability and marked suggestibility. It is not admissible merely to show that an accused is unusually timid, vulnerable or susceptible to pressure.

The jury must assess whether the objective limb of duress is met. Wrongful exclusion of evidence bearing on that issue makes a conviction unsafe unless the appellate court can properly conclude that the omission could not affect safety.

A prior police interview may be used by a co-accused to challenge directly inconsistent trial evidence. The propriety of playing the whole interview depends on whether it creates a real risk that the jury will confuse the prior account with the evidence at trial.

The appellant was convicted at Blackfriars Crown Court of conspiracy to rob and sentenced to three years’ imprisonment. He accepted at trial that he had participated in the robbery, but relied on duress said to have been exerted by Rashid Jagun.

His police interview, conducted without a caution or appropriate adult, was used by his co-accused in cross-examination because it contradicted his trial account. The trial judge also refused severance and excluded the evidence of a psychologist, Dr McAnena, concerning the appellant’s low IQ, learning disability and heightened suggestibility.

The appeal challenged the use of the interview, the refusal of severance, and the exclusion of the psychological evidence. The central issue was whether that evidence was capable of bearing on the objective limb of the defence of duress and, if wrongly excluded, whether the conviction remained safe.

1. Appeal allowed. The conviction was quashed. The court declined to order a retrial because, in all the circumstances, the public interest did not require one.

2. The trial judge was entitled to permit counsel for the co-accused to cross-examine the appellant on his inconsistent police interview. The Crown had not sought to adduce it. Once the appellant asserted at trial that he had participated in the robbery under duress and implicated the co-accused in the robbery, the inconsistency was directly relevant to credibility and to the co-accused’s defence. Playing the short taped interview created no realistic danger of confusing the jury.

3. The refusal of severance disclosed no error. There is a strong public interest in joint trials of co-accused, particularly where a defendant alleges duress in connection with another participant. The interview had been used only to challenge the appellant’s evidence, and he could place its full circumstances before the jury.

4. Applying R v Bowen [1996] 2 Cr App R 157, low IQ alone does not supply a relevant characteristic for the objective limb of duress. However, the psychologist’s evidence went further. It was capable of showing significant cognitive impairment, a learning disability and marked suggestibility. Such evidence was admissible in principle as bearing on mental impairment, rather than merely on personal vulnerability.

5. The judge had not found any part of that evidence incapable of belief by a reasonable jury. Her focus on whether the disability was mild or moderate failed to address the evidence of suggestibility. The evidence should therefore have been left with the other evidence for the jury to decide whether the objective limb of duress was satisfied.

6. As that was a jury question, the court could not properly conclude that the conviction was safe without the psychological evidence. Although the court considered the appellant fortunate, it quashed the conviction and made no retrial order.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction and declined to order a retrial: [2004] EWCA Crim 2708.

• Crown Court at Blackfriars: On 6 November 2003, the appellant was convicted of conspiracy to rob before Judge Woollam and a jury. On 4 December 2003, he was sentenced to three years’ imprisonment.