REGINA v DEAN PAUL HAMMOND

A judge may withdraw a defence of duress from the jury only where, taking the defendant’s proposed evidence at its highest, it could not amount in law to that defence. The judge must not decide disputed facts, reject the defence because it appears implausible, or assess whether a jury is likely to accept it.

Duress requires an imminent or immediate threat of death or serious physical injury which operates on the criminal act. A conditional threat which would arise only if the defendant made a complaint, coupled with a decision to escape in order to avoid lesser unwanted sexual advances, does not meet that threshold.

The applicant appealed against a ruling of His Honour Judge Field at Swindon Crown Court on 25 March 2013. The ruling prevented him from relying on duress in answer to a charge of breaking prison at common law.

He had left HMP Leyhill while serving a sentence. His defence statement alleged that another prisoner had made sexually inappropriate comments and threatened that he would be “taken care of” if he reported the conduct. The central issue was whether, assuming that account to be true, it was capable in law of establishing duress.

1. Appeal dismissed. The Crown Court judge was entitled to withdraw the proposed defence of duress because, even on the facts put forward by the applicant, it disclosed no defence known to law.

2. The court reaffirmed the narrow boundary between a permissible legal ruling and an impermissible factual assessment. Applying the principles in R v Lang [2005] 2 Cr App R(S) No 8, a judge must not withdraw duress merely because the account appears hopeless, inconsistent, perverse or unlikely to persuade a jury. The proposed facts must instead be assumed in the defendant’s favour.

3. The relevant inquiry included the questions stated in R v Martin (1989) 88 Cr App R 343: whether the defendant had good cause to fear death or serious physical injury if he did not act, and whether a sober person of reasonable firmness sharing the defendant’s characteristics might have acted likewise. For duress in this context, the threat also had to be imminent or immediate and operating upon the act of escape.

4. The alleged threat would operate only if the applicant made a complaint. He did not allege that he had complained. On the case at its highest, he escaped to avoid continued unwanted sexual approaches rather than an immediate threat of death or really serious bodily harm. That was insufficient for duress. A fear of sexual attack may in some circumstances amount to fear of really serious bodily harm, such as a threat of rape, but this was not such a case.

5. The court did not endorse the Crown Court judge’s apparent reliance on the inconsistency between the police interview and the defence statement. It nevertheless upheld the conclusion and dismissed the appeal.

• Court of Appeal (Criminal Division): Dismissed the appeal and upheld the withdrawal of the proposed duress defence, while not endorsing all of the Crown Court judge’s reasoning: [2013] EWCA Crim 2709.
• Swindon Crown Court: On 25 March 2013, His Honour Judge Field ruled that the applicant could not rely on duress in answer to the charge of breaking prison.