No: 2007/5704/B1 
Neutral Citation Number: [2008] EWCA Crim 1117
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 7 May 2008
 
B e f o r e:

LORD JUSTICE HUGHES 

MR JUSTICE TREACY 
 
SIR PETER CRESSWELL 
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R E G I N A 

v 

MOHAMMED HUSSAIN
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Miss N Shannon appeared on behalf of the Appellant 
Miss B Cripps and Miss N Carter appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE HUGHES:  This appellant contends that a ruling by the judge declining to admit under the bad character provisions some evidence about his co‑accused was wrong because it prevented him from fully developing a defence which he was advancing alleging duress by that co‑accused.  
2.	The appellant and a man called Forid Miah were jointly charged with an attempted robbery at an amusement arcade in Luton.  This appellant worked at the arcade.  The Crown case was that he and Miah had hatched the plan together for the appellant to let Miah into the premises just before closing time, show him where the money and valuables could be found and generally facilitate the robbery.  
3.	It was common ground that at about closing time, when there were only two staff left in the arcade, this appellant and one woman, Miah emerged from the basement armed with certainly a knife and, on the Crown's case, also a gun ‑ real or imitation not known.  It was common ground that the lady member of staff was tied up by Miah with Sellotape around her wrists and locked in the downstairs lavatory.  She, however, managed to telephone her manageress, who by then had left for the evening.  The result of that was that the manageress was able to alert her partner and he, followed quite shortly by the police, arrived at the arcade and eventually any effective robbery was foiled.  Thus it was that the charge was of attempted robbery.  
4.	Miah was tried alongside this appellant.  He admitted that there had been attempted theft and he admitted that it was an inside job planned with this appellant.  His case was that it was the appellant who had set up the whole affair and his contention was that the appellant had told Miah that the woman shop assistant was in on the plot as well.  Accordingly, said Miah, it was never robbery anyway.  
5.	This appellant's defence was firstly that he had not taken any relevant active part at all, although he agreed that he knew that Miah intended to rob the arcade.  His alternative defence was that if what he had done did amount to participation, it had all been done under duress from Miah.  Said Hussain, he had tried to persuade Miah not to do it but Miah had obliged him to be of such help as he was.  
6.	Along the way to those inconsistent defences Miah and Hussain each contended that the other was a drugs supplier and he the hapless addicted purchaser.  Each said that the other had used his power as supplier to persuade him to take part in the offence.  
7.	Both defendants had previous convictions.  The defences being inconsistent as they were, each wished to put in evidence the bad character of the other.  Counsel for each defendant realistically agreed that their respective clients' convictions for various offences of dishonesty were bound to be admitted.  So did counsel for the Crown.  So those convictions of both defendants went into evidence under gateway (a), that is to say agreement of the parties, and the Recorder was not required to rule upon that part of the bad character evidence.  
8.	Next, Miah wanted to call evidence from the arcade manageress which he said supported his claim that this appellant was a drug supplier.  She had seen what on one view were drug transactions taking place.  The Recorder admitted that piece of evidence under gateway (e) as having substantial probative value upon an important issue arising between the co‑accused.  He was plainly right about that and there is no complaint about that part of his ruling.  
9.	This appeal arises out of the last part of the Recorder's ruling.  Miah had been involved something like eight or nine years previously in what was described to the Recorder as a road rage incident in the course of which another man had died.  The exact circumstances of that are a little hard to determine but as presented to the Recorder, and substantially also to us, it appears that Miah had been charged originally with murder, tried on that count, convicted not of murder but of manslaughter but had successfully appealed.  That conviction had been found to be unsafe and had been quashed.  When the case came back to the Crown Court for retrial a plea of guilty to assault occasioning actual bodily harm was accepted.  It follows that the only conviction arising out of that incident was one for assault occasioning actual bodily harm and not for any form of homicide.  
10.	Counsel for Hussain applied to admit under gateway (c) and/or (e) the fact that Miah had been charged with murder although he had not been convicted of it.  For its part the Crown made an application to admit the conviction for assault occasioning actual bodily harm under gateway (g) based on the attack which Miah made on his co‑accused.  The Crown limited what it sought to adduce to the conviction which had actually resulted.  Miah conceded that the conviction which had actually resulted was admissible, but contended that the form of the original charge for murder was not.  The Recorder accepted the submissions of Miah and the Crown and limited what was described throughout as bad character evidence to what Miah had actually been convicted of, namely the assault occasioning actual bodily harm.  
11.	Miss Shannon's grounds of appeal mirror the submissions which were made at the trial.  They are and were based on the fact that this appellant's case was going to be that he was overborne by Miah and obliged to commit the offence, if he did, not only by some personal violence but also by what Hussain believed was Miah's reputation for violence.  It was going to be Hussain's evidence that he believed Miah to have a conviction for murder.  Miss Shannon's contention was that if that was Hussain's belief it went to the issue of duress.  
12.	We agree that the appellant was entitled to give evidence of what he believed Miah had done in the past and/or what he believed Miah to be capable of as at the time of the alleged duress.  Hussain was also entitled if there existed evidence that his belief had some kind of foundation in fact to adduce evidence of that foundation.  In the context of a defendant who is seeking to advance a defence of duress, evidence that his belief had some foundation in fact would in the circumstances of this case be capable of going to (i) the truthfulness of his evidence that that is what he believed, (ii) the reasonableness of his belief in a danger of immediate or near immediate death or serious injury, and (iii) the reasonableness of his response in committing the offence.  
13.	The difficulty for the Recorder is that all this was presented on all three sides as a question of bad character evidence.  On the way that the application was argued before him we are not particularly surprised that he refused it.  Gateways apart, the Recorder was plainly right to say that a mere charge, unproved, could not be evidence of bad character, still less could it be bad character itself.  Bad character evidence is evidence of something bad done by the person in question in the past.  That is a commonsense summary of what it is, but it is also effectively the statutory definition which is to be found in section 98 of the Criminal Justice Act 2003.  Omitting irrelevant words that reads:
"References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part..." 
Misconduct is then defined in section 112(1) in this way:  
"... 'misconduct' means the commission of an offence or other reprehensible behaviour..."  
Note that it is the misconduct which is bad character.  Evidence is simply the means by which the misconduct is proved.  It is not unusual to see the concept of bad character wrongly elided with that of conviction.  It may well be that often they go together, but a conviction is not by itself misconduct.  Its status is that it is excellent and very often irrefutable evidence of misconduct.  A mere charge unproved cannot begin to be conduct.  
14.	In this case, in so far as the application was to adduce bad character, that is to say misconduct of Miah, the Recorder was right to say, whichever might be the gateway suggested, that the only available evidence of misconduct was evidence of a conviction for assault occasioning actual bodily harm.  That was the only conviction which had resulted.  It proved misconduct to that extent and no further.  If, however, the Recorder had been asked to admit the evidence of what Hussain believed about Miah, however mistaken it might have been, and together with that to admit evidence that Miah had in the past been tried for murder, on the different basis that this might help to show that there was some foundation for Hussain's asserted belief, then it seems to us, for the reasons which we have already given, that it would have been relevant evidence which ought to have been admitted. 
15.	Miss Cripps, who has appeared for the Crown today and for whose assistance we are grateful, is, as it seems to us, correctly unable now to suggest any reason why the evidence if put on that basis could have been excluded.  Of course it would no doubt have been followed by a response from either Miah or the Crown or both.  It might have been open to either Miah or the Crown or both to adduce evidence which cast doubt upon the veracity of Hussain's belief.  As to that we do not know.  What we do know is that the evidence which Hussain sought to adduce was admissible, although not within the bad character provisions which was the way that the application was couched.
16.	It follows that to that extent, although for reasons which we readily understand, evidence was excluded which ought to have been admitted.  The question in those circumstances for this court is whether the conviction is or is not unsafe as a result.  That in turn depends upon whether the defence of duress which Hussain was advancing could properly have succeeded had this additional piece of evidence been before the jury.  That is a question for this court to be judged objectively now.  
17.	Certain it is that once duress is advanced it is for the Crown to show that it is not established.  It is for the Crown to negative a defence of duress.  It is however a defence which is available in strictly limited circumstances.  The leading case now is R v Hasan [2005] UKHL 22, [2005] 2 Cr.App.R 22 at page 314.  
18.	As is well‑known, there are four questions that need to be asked when a jury is addressing the question of whether the defence of duress has or has not been negated.  Duress involves, first, a genuine belief that if the crime was not committed the defendant would be at immediate or near immediate peril not simply of violence but of serious harm or death; alternatively that those very close to him would be.  Secondly, it is not sufficient that the defendant felt impelled to carry out the offence unless a reasonable person in his circumstances and of his age and background would have felt similarly.  For the reasons which we have already explained, the evidence of Hussain's belief that Miah had a previous conviction for murder would be capable of being relevant to, without by itself answering, those first two questions.  However, there are two more important questions which have to be addressed.  The third question is this:  "Could the defendant have avoided acting as he did, without harm coming to him or to his nearest and dearest?"  If he could have done so then the defence of duress is negated.  It fails.  Fourthly, a defendant is not entitled to rely on the defence of duress when as a result of his voluntary association with criminals he foresaw or ought reasonably to have foreseen the risk of being subjected to compulsion by threats of violence to commit criminal offences.  
19.	In the present case the appellant's account in support of duress was as follows.  He said first that he was a customer of Miah for drugs.  He said in evidence that he did not know Miah socially but that was almost immediately belied by his own evidence that on occasions they would share drugs together.  They were not, on his account, simply supplier and purchaser, but associates in use.  His evidence was that in the course of just such a session sitting smoking drugs with Miah, a third man, present and doing the same, had suggested this robbery.  Said Hussain, Miah had then taken up the idea.  It was apparent from dates given by Hussain in interview that this had been something like three weeks or so, perhaps a little longer, before the eventual offence.  Then, said Hussain, a fortnight or so before the offence Miah and a friend came to look over the shop.  The appellant let him conduct the reconnaissance but said in evidence that he was not taking the suggestion of robbery seriously.  Three days after that, said Hussain, there was an incident when he was ordered into Miah's car.  Said Hussain, he was reluctant but Miah was aggressive so he complied.  Miah then told him that he wanted help to carry out this robbery.  Said the appellant, he was reluctant because he did not feel he could object because of what he said was Miah's known tendency to anger and violence.  On that occasion he said Miah shouted at him but there was no physical violence.  A few days later the appellant asserted that he and another man both decided that they would not take part.  When Miah was told this, said the appellant, he came to see him.  He was verbally agitated.  Then, by now about four or five days prior to the robbery, Hussain said that Miah came to the shop with a man called Mofitur.  Miah was angry and shouted at the appellant.  The appellant said: "He looked like he'd beat me up given the chance."  A little later that night when the appellant left work Miah accosted him in the presence of Mofitur, seized him by the shoulder, punched him a number of times and put his hands around his throat.  Said the appellant, he was seriously scared for his life or the lives of his family.  The appellant's evidence, however, was that after that incident all three of the men, Miah, Mofitur and he (the appellant) went off together to somebody's house to smoke drugs together for the remainder of the evening.  
20.	The jury had the benefit of Mofitur's evidence about this same encounter.  His evidence scarcely advanced the defence of duress.  Mofitur said that there was an argument between Miah and Hussain but that that seemed to be because Miah blamed Hussain for the fact that Miah's car had been impounded.  Mofitur described the argument as a "bit of rough treatment, a couple of pushes and shoves".  Although he said that Hussain seemed afraid, he went on to say that after a short while the two of them, Miah and Hussain, settled their differences and they all went off together.  As we have already said, on the appellant's case they went off together to share some drugs.  The appellant had also told the police that the following day he had again spent part of the day sharing drugs with Miah and consuming them together.   
21.	Miss Cripps suggested to us today that that being the state of the evidence the Recorder should really have withdrawn the defence of duress from the jury.  That submission we reject.  Nobody suggested it at the time and we are quite satisfied that the Recorder was right to leave the defence to the jury and would have been right if the evidence which ought to have been admitted had been added in.  But whether the question should at trial have been left to the jury is not now the question for us.  
22.	The question for us is whether the evidence which was mistakenly excluded should properly have made any difference to the jury's eventual conclusion which was that duress had been negated.  We are quite satisfied that it could not.  There had been ample opportunity on the appellant's own account to go to the authorities between the violent incident, such as it was, and the robbery.  There was ample opportunity accordingly to avoid being compelled to commit the offence.  Moreover, on his own account Hussain had associated with Miah throughout and had continued to do so after he knew that Miah was planning a robbery of Hussain's work place which Hussain knew Miah needed him to help with.  The plan depended in part upon Hussain's help.  Hussain actually foresaw and certainly ought to have foreseen that he would come under pressure from Miah to assist in this robbery, but he continued nevertheless in his association with him ‑‑ evidenced most plainly by the two evenings spent consuming drugs together within the few days before the offence.  
23.	We make no general propositions about how duress may have to be considered on different facts, but on the facts of this case we are satisfied that the defence of duress could never properly have succeeded.  In those circumstances the conviction is safe, despite the mistaken exclusion of the evidence to which we have referred, and that being so this appeal must be dismissed.