Batchelor, R v

A defence of duress is unavailable where a defendant could reasonably have taken evasive action, including seeking police assistance. If threatened retribution was not reasonably expected to follow immediately or almost immediately upon non-compliance, that opportunity will ordinarily defeat the defence.

A judge should not leave duress to the jury merely because some evidence has been adduced. The evidence must be capable in principle of supporting a proper jury conclusion that the defence is made out. Psychiatric evidence which does not bear on the defendant’s opportunity for evasive action does not alter that conclusion.

The appellant, the sole director and shareholder of a property company, pleaded guilty to cheating at common law after false VAT invoices led to payments totalling almost £675,000.

He said that sustained threats and violence against him and his family had compelled the fraud. The trial judge ruled that duress should not be left to the jury, principally because the appellant had repeated opportunities over about two and a half years to seek help from the police. Following that ruling, he pleaded guilty and received four years’ imprisonment.

He appealed against conviction and renewed an application for permission to appeal sentence. The central issues were whether the evidence could support duress and whether the sentence was manifestly excessive.

1. The conviction appeal was dismissed and the renewed application for permission to appeal sentence was refused.

2. The court applied Z [2005] 2 AC 467. Duress requires that, in the defendant’s circumstances, there was no evasive action which he could reasonably have been expected to take. Where the threatened retribution was not reasonably expected to occur immediately or almost immediately after refusal, there will generally be an opportunity to avoid the crime, including by approaching the police.

3. Even assuming that the appellant’s account of intimidation was true, no properly directed jury could find duress. He had opportunities over two and a half years to contact the authorities, and he was not compelled to make an immediate payment or to commit the charged fraud. The court endorsed the view that the earlier approach in R v Hudson and Taylor [1971] 2 QB 202 had allowed sympathy to distort the governing principles.

4. The judge did not usurp the jury’s function by withdrawing the defence. Consistently with Bianco [2001] EWCA Crim 2516, a defence need only be left where the evidence could properly support it. The psychiatric evidence did not bear on whether this appellant had a reasonable opportunity for evasive action. It was therefore unnecessary to decide the alternative ground that the threats did not directly cause the particular offence.

5. The four-year sentence was not manifestly excessive. The judge had considered the psychiatric material. Any credit for a guilty plea entered three days into the trial would have been small, and the sentence was within the analogous fraud-guideline range having regard to the amount and duration of the fraud.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and refused the renewed application for permission to appeal sentence.

• Crown Court — ruled that duress should not be left to the jury. The appellant then pleaded guilty to cheating at common law and was sentenced to four years’ imprisonment.