Dao & Ors v R.

An appeal against conviction will fail where an alleged misdirection on duress could not realistically have affected the jury’s verdict. Where the jury necessarily rejected a claimed threat of violence and the evidence makes the asserted coercion fanciful, a further direction that false imprisonment alone might found duress cannot render the convictions unsafe.

The court expressed only a provisional view that duress should remain confined to threats of death or serious injury. Council of Europe Convention on Action against Trafficking in Human Beings does not enlarge the common-law defence or create immunity from prosecution for trafficked persons.

The appellants were convicted at the Crown Court at Snaresbrook of cultivating cannabis and possessing criminal property after police found them at a cannabis factory. They maintained that they had been deceived into attending, threatened, and prevented from leaving, so that their participation was under duress.

The recorder directed the jury on duress by reference to threats of death or serious injury, the accused’s reasonable belief in an imminent threat, its duration and causal effect, and the opportunities to escape. The appeal alleged that the jury should also have been directed that unjustified imprisonment could itself amount to the necessary threat.

Dao abandoned his appeal and Mai had been deported. The practical issue concerned Nguyen and whether the absence of the proposed direction rendered the convictions unsafe.

1. The appeals were dismissed. Even assuming, in the appellants’ favour, that a threat of false imprisonment without death or serious injury could found duress, the convictions were safe. The evidence of voluntary and sustained participation was overwhelming. It included possessions, telephones, food and drink within the premises, a key in the living area, a place of worship, several days’ residence, and payment for the work.

2. The verdicts necessarily meant that the jury rejected the alleged threats of violence. The recorder had also directed the jury to consider whether incarceration reinforced a continuing threat and whether there were opportunities to escape. On those facts, removing the alleged threat of violence could not realistically have made the assertion of false imprisonment a stronger or viable defence. The omitted direction could therefore not have affected the result.

3. The court declined to determine the wider scope of duress because it was unnecessary to the disposition. It nevertheless expressed a provisional view that false imprisonment alone should not suffice. The more recent authorities, including R v Z [2005] UKHL 22, pointed to a narrow defence based on threats of death or serious injury. Policy also favoured that limit because duress is difficult for the prosecution to investigate and disprove, and sentencing can reflect reduced culpability where the full defence is unavailable.

4. Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings did not assist the appellants. Following the approach in R v M(L) and others [2010] EWCA Crim 2327 and R v N; R v Le [2012] EWCA Crim 189, it neither modifies duress nor supplies blanket immunity. Its fact-sensitive protection operates through established principles concerning prosecution, abuse of process, sentencing, and the existing defences.

• Court of Appeal (Criminal Division): Dismissed the appeals against conviction. The alleged omission of a direction on false imprisonment could not affect the safety of the convictions.

• Crown Court at Snaresbrook: Before Recorder Morgan, convicted the appellants of cultivating cannabis and possessing criminal property, and imposed concurrent custodial sentences.