Beever, R (on the application of) v Independent Adjudicator of HMP Frankland

Where a prisoner raises duress, the prosecution must disprove the defence beyond reasonable doubt once sufficient evidence of a threat has been raised. A high threshold for the seriousness of the threat does not alter that burden. A conviction cannot stand where the decision-maker’s reasons leave a real possibility that the defendant was required to prove the threat or the defence on the balance of probabilities. The appropriate remedy is ordinarily to quash the conviction and remit the matter for rehearing, subject to any subsequent abuse of process argument caused by delay or evidential difficulty.

The claimant, a prisoner, was convicted by a district judge of possessing a prohibited mobile phone. He relied on duress, saying that he had held the phone for another prisoner because he feared being assaulted. The district judge concluded that the threat did not meet the necessary threshold, but also stated that the claimant had to demonstrate the relevant matters on the balance of probabilities.

On judicial review, the defendant accepted that the burden of proof had been misstated, but argued that the district judge had nevertheless assessed the evidence correctly. The central issue was whether the conviction could stand despite the misdirection.

1. The claim succeeded. The court accepted the principle stated in R v Z [2005] 2 AC 467: a threat founding duress must involve death or serious injury, but once evidence of such a threat has been raised, the prosecution bears the burden of disproving duress beyond reasonable doubt.
2. The high evidential threshold for duress did not transfer the burden of proof to the claimant. The district judge was entitled to find that the perceived and imminent threat was not sufficiently serious. However, the simultaneous direction that the claimant had to demonstrate the matter on the balance of probabilities created a real concern that the wrong burden had affected the conviction.
3. The conviction therefore could not stand. The proper course was to remit the matter for rehearing before a different district judge, subject to any abuse of process argument arising from delay or practical difficulties in presenting the case.
4. The interested party was ordered to pay the claimant’s costs, and a public funding certificate was ordered.

The judgment arose from a judicial review of a district judge’s April 2009 prison disciplinary conviction. The Administrative Court held that the conviction could not stand and remitted the matter for rehearing.