Ali, R. v

The defence of duress is excluded where an accused voluntarily associates with others and foresees, or ought reasonably to foresee, a risk of compulsion by threats of violence. The decisive issue is that foreseeable risk, rather than whether the associates are generally regarded as bad company or are known to be engaged in criminal activity.

A defendant with cautions is not necessarily entitled to a good character direction. The trial judge must assess the defendant’s actual character and whether the direction would mislead the jury. Recent cautions for dishonesty, particularly where similar to the charged offence, may justify withholding both limbs of the direction.

The appellant was convicted at Northampton Crown Court of robbery arising from the taking of a car during a test drive. He maintained that he acted under duress after threats and violence by Bilal Hussein and another man. The sole issue at trial was whether duress was available.

He appealed against conviction on the grounds that the judge had misdirected the jury about voluntary association and had wrongly declined to give the credibility limb of a good character direction despite two cautions for theft. He also appealed against a sentence of five years and six months’ detention in a young offender institution as manifestly excessive.

1. Appeals dismissed. The conviction and sentence were upheld.

2. The direction on duress was sufficient. The judge correctly directed the jury that duress was unavailable if the appellant voluntarily associated with others in circumstances where he ought to have foreseen compulsion by threats of violence. The reference to “bad company”, viewed in context and with the repeated fuller direction, did not displace that test.

3. R and Z [2005] UKHL 22 established the relevant focus. Although Lord Bingham’s certified answer referred to voluntary association with persons engaged in criminal activity, the core inquiry was the foreseeable risk of compulsion by violence. The threatener’s particular activity was not an additional requirement. The trial judge’s direction was materially the same as the approved direction in that authority.

4. The judge was entitled to refuse both limbs of the Vye direction. A caution is not a conviction, but it evidences the commission of an offence. The appellant’s two cautions were recent dishonesty offences, were similar in character to the robbery, and bore on his veracity. Applying the guidance in Keith S, the judge could conclude that the appellant was not of good character and that a good character direction was inappropriate. The exercise of that discretion was clearly right and not merely within the permissible range.

5. The sentence was severe but not manifestly excessive. The planned robbery involved the threat and use of a knife, caused injury and terror to the victim, and warranted a deterrent sentence. The court took account of the appellant’s youth and absence of previous violence, but these matters did not justify intervention.

• Court of Appeal (Criminal Division). By [2008] EWCA Crim 716, dismissed the appeals against conviction and sentence.
• Northampton Crown Court. On 19 April 2007, convicted the appellant of robbery and sentenced him to five years and six months’ detention in a young offender institution.