JENNIFER NANCY JOHNSON v REGINA

A substantial delay does not of itself make a criminal trial unfair. A stay is unwarranted where contemporaneous material remains available, any prejudice can be addressed by suitable directions, and the balancing of policy and justice supports trial.

The established defence of duress requires a genuine and reasonable belief in death or serious injury that is immediate or almost immediate, no reasonable opportunity for escape or avoidance, and conduct which a reasonable person sharing the accused’s relevant characteristics might have undertaken. A violent, coercive and controlling relationship, including battered woman’s syndrome, may be relevant when applying that framework, but does not remove the requirements of imminence and evasive action.

The applicant was convicted at Lewes Crown Court of perverting the course of justice and making a false statement. She had falsely retracted an earlier truthful identification of a sweatshirt linked to her former partner, Russell Bishop, and later gave false evidence at his 1987 murder trial. Her defence was duress arising from threats within a violent, coercive and controlling relationship.

She renewed applications for leave to appeal conviction and concurrent sentences of six years’ imprisonment after refusal by the single judge. She contended that delay required a stay, that the summing-up was unfair, and that the established law of duress inadequately addressed coercive control. She also challenged sentence as manifestly excessive.

1. The renewed applications for leave to appeal conviction and sentence were refused. The applicant’s conviction grounds were unarguable and the concurrent six-year sentences were not arguably manifestly excessive.

2. The delay of almost 34 years did not make a fair trial impossible. There remained substantial contemporary material, including social-services records. Scientific advances and the quashing of Bishop’s acquittals explained why a realistic prosecution had not earlier been available. The trial judge’s careful directions enabled the jury to allow for faded memories and any material disadvantage caused by delay. The Court agreed with the judge’s balancing of policy and justice under R v Latif, [1996] 2 Cr App R 92.

3. The summing-up, read as a whole, was fair and balanced. It was proper to identify material inconsistencies in the applicant’s account while repeatedly leaving factual decisions to the jury. The judge fairly summarised the competing interpretations of the evidence concerning violence, sexual abuse, intimidation and the prison letters. General allegations of biased or hostile remarks, without precise and sustainable examples, did not establish unfairness.

4. The judge correctly directed the jury on duress in accordance with R v Hasan, [2005] UKHL 22. The jury had to consider separately for each count whether the applicant reasonably believed in threatened death or serious injury that was immediate or almost immediate; whether a reasonable escape route was available; and whether a reasonable person sharing her relevant characteristics might have acted similarly. Relevant characteristics could include violence, sexual violence, controlling behaviour and any psychiatric condition. Consistently with R v GAC, [2013] EWCA Crim 1472, battered woman’s syndrome could be relevant to that assessment.

5. Immediacy and the absence of reasonable evasive action remain essential to duress. Removing them would create an open-ended defence that would be difficult or impossible to disprove. The applicant’s own account was capable of being assessed within the established framework; it did not justify departure from binding authority.

6. On sentence, the judge was entitled to sentence on a basis consistent with the jury’s rejection of duress. The offences were exceptionally serious interferences with the administration of justice because the false evidence was intended to assist a person whom the applicant knew was linked to the murders. The judge took account of mitigation but was entitled to impose a substantial custodial sentence.

1. Court of Appeal (Criminal Division): The renewed applications for leave to appeal conviction and sentence were refused in [2022] EWCA Crim 832.

2. Crown Court at Lewes: Before Fraser J and a jury, the applicant was convicted on 17 May 2021 of perverting the course of justice and making a false statement. On 19 May 2021, she received concurrent terms of six years’ imprisonment.

3. Single judge: Leave to appeal conviction and sentence was refused, leading to the renewed applications before the full court.