Judgments - Hasan (Respondent) (On Appeal from the Court of Appeal (Criminal Division)) (formerly Regina v. Z (2003) (On Appeal from the Court of Appeal (Criminal Division))

A statement which is wholly exculpatory or neutral when made is not a confession under sections 76 and 82(1) of the Police and Criminal Evidence Act 1984, merely because it later damages the maker’s case. Its admissibility may instead be controlled under section 78.

Duress is a narrowly confined excuse. The threat must reasonably be believed, must cause the offence and must leave no reasonable opportunity for evasive action. A defendant cannot rely on duress arising from voluntary association with people engaged in crime where the defendant knew or ought reasonably to have known of the risk of violent compulsion. Foresight of compulsion to commit the same type of offence, or even a criminal offence, is unnecessary.

The defendant was tried on two counts of aggravated burglary. He was acquitted of the first but convicted of the second after admitting his participation and asserting that a violent associate had compelled him by threats against him and his family.

The prosecution also used inconsistencies between his trial evidence and an earlier confidential statement to police. The Court of Appeal allowed his appeal and quashed the conviction in R v Z [2003] EWCA Crim 191, [2003] 1 WLR 1489. It held that the statement was a confession and that the trial judge had misdirected the jury on duress.

The Crown appealed. The issues were whether an apparently exculpatory or neutral statement becomes a confession when later used adversely, and when voluntary association with criminals prevents reliance on duress.

1. Disposition. The House unanimously allowed the Crown’s appeal, set aside the Court of Appeal’s order, restored the conviction and remitted the matter to the Court of Appeal so that the defendant could surrender to his bail. Lord Rodger and Lord Brown agreed with the reasons of Lord Bingham and Lord Steyn. Baroness Hale agreed with Lord Steyn on confession and concurred in the result on duress, while differing on part of the governing formulation.

2. Confession. Per Lord Steyn, section 76(1), read with section 82(1) of the Police and Criminal Evidence Act 1984, requires a statement to be assessed in the circumstances existing when it was made. A wholly exculpatory or neutral statement is not a confession merely because later evidence makes it damaging, false or inconsistent. Section 82(1) extends the ordinary meaning of confession to partly adverse statements; it does not extend it to wholly exculpatory statements. Section 78 remains capable of excluding such a statement where its admission would adversely affect the fairness of the proceedings.

3. Per Lord Steyn, Saunders v United Kingdom did not require a different construction. That decision concerned testimony obtained under legal compulsion. The combined operation of sections 76, 78 and 82 was compatible with article 6, so section 3(1) of the Human Rights Act 1998 supplied no basis for enlarging the statutory meaning of confession.

4. Duress and evasive action. Per Lord Bingham, duress is an excuse which must be strictly controlled. The defendant must genuinely and reasonably believe in the efficacy of a threat of death or serious injury. The threat must directly cause the offence. The defence is unavailable where reasonable evasive action could have been taken. Unless threatened retribution is reasonably expected immediately or almost immediately after non-compliance, there will ordinarily be little room for doubt that police assistance or another means of escape was available.

5. Voluntary exposure to coercion. Per Lord Bingham, a person who voluntarily becomes or remains associated with others engaged in criminal activity cannot rely on duress where, knowing what that person knew, the risk of compulsion by them or their associates was or ought reasonably to have been foreseen. The defendant need not foresee compulsion to commit a particular type of offence, or even foresee the precise criminal use which the coercer will make of the defendant’s subservience. R v Baker and Ward [1999] 2 Cr App R 335 mis-stated the law by requiring foresight of coercion to commit offences of the type charged.

6. Baroness Hale would have required foresight that duress might be used to compel crimes of some kind. She also considered that the doctrine should not ordinarily capture close personal or family relationships, or associations maintained with reasonable excuse. She nevertheless agreed that the Crown’s appeal should be allowed.

1. House of Lords: The Crown’s appeal was allowed unanimously. The order quashing the conviction was set aside, the conviction was restored and the matter was remitted to the Court of Appeal.

2. Court of Appeal (Criminal Division): In R v Z [2003] EWCA Crim 191, [2003] 1 WLR 1489, the court allowed the defendant’s appeal and quashed the conviction as unsafe. It held that the confidential statement was a confession and identified two misdirections concerning duress.

3. Central Criminal Court: The jury acquitted the defendant of the first count of aggravated burglary and convicted him of the second. He was sentenced to nine years’ imprisonment.