Khan, R. v

A defence of duress requires a threat which, on the defendant’s reasonably believed facts, gives good cause to fear death or serious injury, and which would have impelled a sober person of reasonable firmness sharing the defendant’s characteristics. The defence is unavailable where the threat lacks the necessary immediacy or where the defendant could reasonably have taken evasive action.

Although duress will ordinarily be for the jury, a judge should withdraw it where the evidence provides no arguable basis for the defence and no reasonable jury could find it available. The judge must avoid deciding disputed facts, but the jury has no constitutional right to reach a perverse conclusion.

The applicant was tried at Birmingham Crown Court for knowingly being concerned in the fraudulent evasion of the prohibition on importing heroin, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979. He accepted his knowing involvement in arranging for and taking delivery of a parcel containing heroin, but relied on duress arising from threats allegedly made against his uncle and the uncle’s children.

After the applicant had given evidence, the trial judge declined to leave duress to the jury. The applicant changed his plea to guilty and was convicted. He sought leave to appeal against conviction, principally contending that the judge had wrongly withdrawn the defence. The central issue was whether the evidence was capable of supporting duress, particularly on immediacy and reasonable evasive action.

1. The application for leave to appeal against conviction was refused. The trial judge was entitled to withdraw duress from the jury.

2. The court applied the two-stage duress inquiry stated in R v Graham (Paul Anthony) [1982] 1 WLR 294. The first question concerns the defendant’s reasonably believed threat and whether it gave good cause to fear death or serious physical injury. The second is objective: whether a sober person of reasonable firmness, sharing the defendant’s characteristics, would have acted as the defendant did.

3. The court applied the limitations restated in R v Z [2005] UKHL 22. Duress is available only where no evasive action could reasonably have been expected. A threat which is not expected to be carried out immediately or almost immediately will ordinarily leave scope for such action.

4. On the applicant’s evidence, the alleged violence was neither immediate nor almost immediate when he first agreed to take part in the importation. The threat was conditional on the parcel not being signed for, and the earliest possible violence was at least a week after his initial engagement in the crime.

5. In any event, the evasion issue independently defeated the defence. The applicant gave no explanation for not approaching the police, despite his knowledge of police procedure. A sober person of reasonable firmness sharing his characteristics would have gone to the police or involved family members. No reasonable jury could have concluded otherwise.

6. The judge remained on the proper side of the boundary between making a legal ruling and usurping the jury’s fact-finding role. Where there is no arguable evidential basis for duress, the judge should withdraw it rather than permit a perverse verdict.

• Court of Appeal (Criminal Division): refused the applicant leave to appeal against conviction: [2018] EWCA Crim 78.
• Crown Court at Birmingham: after the judge withdrew the defence of duress from the jury, the applicant changed his plea to guilty and was convicted of the importation offence under the Customs and Excise Management Act 1979.