Dao & Ors v R.

This appeal against conviction potentially raised interesting issues as to the scope of the defence of duress and also, as it turned out, as to “trafficking”. In the event, considerations as to trafficking caused us to delay our judgment pending the decision of another constitution of this Court presided over by Lord Judge CJ in R v N; R v Le [2012] EWCA Crim 189. That decision has since been handed down. Subsequently, we received written submissions from the parties as to R v N. In the light of R v N and the view we take of the facts of the present matter, our judgment can be significantly shorter than it might otherwise have been.

On the 18^th March, 2011, in the Crown Court at Snaresbrook, before Mr. Recorder Morgan, the Third Appellant (“Nguyen”) was convicted of cultivating cannabis (count 1) and possessing criminal property (count 5). On the same day, the Second Appellant (“Mai”) was convicted of cultivating cannabis (count 1) and possessing criminal property (count 4). On the 21^st March, 2011, the First Appellant (“Dao”) was convicted of cultivating cannabis (count 1) and possessing criminal property (count 3).

Sentencing proceeded on the 21^st March, 2011:

Dao was sentenced to 3 years’ imprisonment on count 1, with 6 months’ imprisonment on count 3 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant.

Mai was sentenced to 3 years’ imprisonment on count 1, with 6 months’ imprisonment on count 4 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant.

Nguyen was sentenced to 3 years 4 months’ imprisonment on count 1 with 9 months’ imprisonment on count 5 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant.

A further count (count 2) of possession a controlled drug with intent to supply was left on file in the usual terms against all three Appellants.

The Appellants appeal to this Court by leave of the single Judge, who observed:

In the event, Dao abandoned his appeal and Mai has been deported. Nguyen remains a serving prisoner. Accordingly, the appeal did not concern Dao at all. Though Nguyen and Mai remained represented by the same counsel, in practical terms the appeal was essentially concerned with Nguyen.

At 10.30 on the 25^th October, 2010, police forced entry to premises at unit 6, 61 Sutherland Road, E17. Inside they found a fully functioning cannabis factory and the three Appellants. On commencing their search, they found Nguyen in the kitchen area; she was using her mobile telephone to communicate her imminent arrest to a friend. The wholesale cost of the cannabis recovered was approximately £42,000.

The Appellants were all Vietnamese and were unable to speak English. They were arrested and cash was seized (reflected in the counts recorded above): £297 from Dao; £242 from Mai; £741 from Nguyen’s handbag. Nguyen and Mai were partners.

In the living area of the unit there was a satchel containing keys. One key fitted a lock on the door of the unit. A mobile telephone seized from the kitchen belonged to Nguyen and was found to contain the address of the unit and another unit; it also contained incorrect personal details of Nguyen.

In interview, Dao stated that he had been asked to clear a warehouse for £300. He had been approached by a woman at a bus stop. He had been taken to the unit and a “western” male had put the money in his hand. Once he got there he was locked in and realised what was inside. The same man and woman brought food and drink to the unit. He had two mobile telephones but both were without credit. His co-accused arrived a day or two after him. Once he had arrived at the unit and realising that he had been duped, he telephoned a friend who advised that as he had agreed to do it, he should get on with it and get paid. At first he was scared but then he just got on with it. He could not escape because he had been locked in by four padlocks.

In his interview, Mai admitted harvesting the plants.

In her interview, Nguyen said that she had cut the cannabis and therefore cultivated it. Her solicitor indicated that she had been advised not to answer questions but she proceeded to answer some, though not all, of the questions put to her. Her account was that she had been threatened with a knife. She had met a woman, Thuy, in the street and she had forced her to go to the premises. The cannabis was already in the unit. She had not known that there was cannabis there until she arrived. “They” (it would seem Thuy and some “western” men) had not injured her but had threatened her with a knife. They had paid her but she had been unable to leave; she had wanted to but they had locked the door. She stated that she had only been given £500 of the money found on her, believing it to be for cleaning out and dismantling a factory and that the remainder was derived from previous legitimate income.

When giving evidence, Nguyen added to her account in interview. She now said that she had not only been threatened with a knife but also that they had threatened to kill her. Two mobile telephones recovered from the kitchen had been hers and she had used one to telephone a friend when the police had attended. She said that she had not known of the satchel or the keys within it.

Both Dao and Mai, when giving evidence, expanded on their accounts in interview, in particular as to threats made to them.

All the Appellants had been of good character.

The prosecution case was that the police had caught the Appellants red handed. The Appellants were fully involved in cultivating and harvesting the cannabis. They were paid – and had provisions – in order to stay inside the premises.

The defence case for each Appellant was that they had been duped and had attended the unit believing that they were there to clean. Once they realised they had been duped they wanted to leave but were threatened to the extent that their will had been overcome. They were locked in to the premises with no means to escape and any assistance in the cultivation or harvest of the cannabis was under duress.

The issue for the jury on count 1 was whether the prosecution had made them sure that the accused whose case they were considering had cultivated cannabis plants voluntarily. On counts 3-5, the issue for the jury was whether the prosecution had made them sure that the money found on the accused whose case they were considering was criminal property from that accused’s willing participation in count 1 and that the accused in question knew or suspected that it was payment for cultivating cannabis. As posed by the Judge (summing-up, at pp. 26 and following), the questions to be asked in the light of the raising of the defence of duress, were, in essence, as follows:

Whether the accused whose case they were considering had been threatened by someone with death or serious injury if he/she did not cultivate the cannabis plants?

Whether the accused in question reasonably believed that the threat would be carried out imminently if he/she did not comply?

Whether the threat endured throughout that accused’s participation and was it reinforced by incarceration?

Whether the threat was the direct cause of that accused’s decision to stay?

Whether a reasonable person with the characteristics of the accused would have been driven to act as the accused did, considering the opportunities that the accused had to escape?

As already recorded, all the Appellants were convicted.

Very properly, there was a discussion between the Judge and counsel on the Judge’s written steps to verdict. Counsel for the Appellants submitted that the Judge should direct the jury that they should consider the threat of a continuing false imprisonment which abated only when they complied with the instructions they had been given.

The Judge ruled that the facts of the Appellants’ cases were that they had been compelled to go into the premises, having been duped because of a threat. The false imprisonment of which they complained had only arisen after the threat. If the jury rejected the contention that they had been threatened, the Judge questioned the relevance of the false imprisonment thereafter. There had been threats of violence but it was only after those threats that they were told “no violence will occur if you stay here”. The Judge determined that that was not a threat of false imprisonment.

The ground of appeal advanced on behalf of Nguyen (and Mai) was that the Judge had misdirected the jury on the law of the defence of duress; he should have directed them that the threat could be one of unjustified imprisonment as well as death and serious injury.

We were most grateful to Mr. Unwin, for the Appellants Nguyen and Mai and Mr. Perry QC for the Respondent, for their excellent submissions.

Mr. Unwin’s submissions can be summarised as follows:

The scope of the defence of duress should extend to false imprisonment. The matter had been left open in the authorities and the Appellants had been entitled to the most favourable permissible direction. It was logical to include the threat of false imprisonment but arbitrary and anomalous to exclude it; the true cut-off was between threats to the person and threats to property. Extending the defence in this way would not open the floodgates or offend public policy; other strict limitations on the defence would remain, including, in particular, the requirement that a reasonable person would have been driven to act in the way the defendant in question had acted.

There was material before the jury upon which they could have concluded that the Appellants had been threatened with false imprisonment.

Had the Jury been so directed, they might have reached a different conclusion as to the Appellants’ guilt. Accordingly, the convictions were unsafe.

The position contended for by the Appellants would better ensure that domestic (English) criminal law implemented the United Kingdom’s obligations of protecting victims of trafficking contained in the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) (“the Trafficking Convention”) and, in particular, in Art. 26 thereof.

Mr. Perry QC’s submissions proceeded as follows. First, it was a requirement of the defence of duress that there must have been the threat of death or serious injury. False imprisonment without such a threat would not suffice. A line had to be drawn somewhere and there were good policy reasons for confining the defence within narrow bounds. The defence of duress was particularly difficult for the prosecution to investigate and disprove beyond reasonable doubt. Secondly, whatever the precise limits of the defence of duress – and even assuming that it extended to false imprisonment – on the facts of the present case, the conviction was in any event safe. Realistically, only one verdict had been open to the jury. Thirdly, there was nothing in the Trafficking Convention or in the decision of R v N (supra) which assisted the Appellants’ case; to the contrary, this Court, in both R v N and the earlier decision of R v M(L) and others [2010] EWCA Crim 2327; [2011] 1 Cr App R 12 had rejected the submission now advanced by the Appellants.

It is convenient to deal with the matter under the following broad headings:

Issue (I): The safety of the conviction;

Issue (II): The scope of the defence of duress;

Issue (III): The Trafficking Convention.

We agree with Mr. Perry QC: whatever the precise scope of the defence of duress, the Appellants’ convictions were safe. The evidence against the Appellants was overwhelming. Even assuming that the threat of false imprisonment was capable of sufficing to found the defence - without the threat of death or serious injury - and that the Judge erred in not giving the jury a direction to this effect, realistically, we are sure that the jury’s answer must have been the same. In short, on the facts of the present case and on the assumptions as to law most favourable to the Appellants, the defence of duress was fanciful. Our reasons follow.

First, the Appellants’ interviews were telling. Nguyen provided no details of the defence, other than to say that she had been threatened with a knife. It was only when giving evidence that Nguyen added that “they” had threatened to kill her, if she “left or tried to leave”. In interview, Mai said nothing about duress at all.

Secondly, the factual picture presented to the police when they forced entry to the premises, was striking indeed:

The Appellants had some of their possessions within the premises, including clothes and mobile telephones. In particular, it may be noted that Nguyen herself was using her mobile telephone, as described earlier.

The kitchen area was stacked with food and drink.

A key to the premises was found in the living area. It is fair to say that the Appellants denied knowledge of its existence; however, it would be remarkable for a key to have been left there by the Appellants’ “captors”, had they been seeking to detain the Appellants against their will.

A small area within the premises had been set up as a shrine for religious worship.

By the time of their arrest, the Appellants had been in the premises for several days and had been paid for their work – albeit they maintained that they had originally been recruited for cleaning work.

Thirdly, the prosecution must have made the jury sure that the Appellants’ defence of duress, based on the threat of violence, was to be rejected. This conclusion follows, inescapably, from the jury’s verdict. If the threat of violence did not suffice, we are unable to see how, realistically, a defence of duress based on subsequent false imprisonment might have succeeded; the Appellants’ assertion of false imprisonment could hardly have gained in strength as a defence if the threat of death or serious personal injury was removed from the equation. It is in any event to be appreciated that questions iii) and v) posed by the Judge (see at [18] above), raised for the jury’s consideration the (alleged) incarceration of the Appellants as reinforcing the threat of violence (summing-up, at p.27). The Judge’s written directions (or questions) contained in his “Route to Verdict” document (especially under Question 4) were to the same effect and he dealt with this topic in some detail in his summing–up, at pp. 31 and following.

For these simple and straightforward reasons, based entirely on the facts of the case, whatever the precise scope of the defence of duress, we entertain no doubt as to the safety of the conviction. It follows that the appeals must be dismissed. Issue (II) is necessarily academic and, as it transpires in the light of the arguments addressed to us, so too is Issue (III). We accordingly deal with those Issues briefly and, in the case of Issue (II), provisionally only.

(1) Overview: Notwithstanding the obvious interest in the point and, if we may say so, the commendable industry of both counsel, it does not seem right to express a concluded view on this Issue in a case where it is unnecessary to do so.

The furthest we are prepared to go and essentially in deference to the arguments addressed to us, is to express a provisional view: namely, that we would have been strongly disinclined to accept that a threat of false imprisonment suffices for the defence of duress, without an accompanying threat of death or serious injury. We would be minded to regard any such widening of the defence as ill-advised. While accepting that the Issue has not been resolved by authority, our provisional view is supported by pointers in the more recent authorities and, more especially, by considerations of policy there highlighted. Brief amplification follows.

(2) Authority: Our starting point is the well-known passage in the (dissenting) speech of Lord Simon of Glaisdale in DPP v Lynch [1975] AC 653, at p.686, referred to with approval by Lord Mackay of Clashfern in DPP v Howe [1987] AC 417, at p.453. Lord Simon said this:

Mr. Unwin placed some reliance on R v Steane [1947] 1 KB 997. That case concerned a defendant charged with doing an act likely to assist the enemy with the intent to do so, by broadcasting in Germany during World War II. The defendant admitted the broadcasting but gave evidence that this was done under the pressure of threats and of beatings up and with a view to saving his wife and children (who were in Germany) from a concentration camp. Lord Goddard CJ observed (at p.1005) that:

For completeness, in R v Bourne (1952) 36 Cr App R 125, at p.129, Lord Goddard CJ again referred to “threats of imprisonment or violence” but, here too, the observation was obiter.

On the other side of the line, in R v Abdul-Hussain and others [1998] EWCA Crim 3528, Rose LJ (Vice President), at p.11, spoke of “Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility” as an “essential element” of both duress and duress of circumstances. However, given the issues in that case, this observation too cannot be regarded as ratio.

More recently, in R v Z [2005] UKHL 22; [2005] 2 AC 467, Lord Bingham of Cornhill considered the defence of duress in some detail, at [17] et seq. The relevant issue concerned the voluntary association of the defendant with known criminals, so Lord Bingham’s observations were obiter. That said, the tenor of those observations and the respect they command, point against the threat of false imprisonment sufficing. Lord Bingham underlined (at [18]) that duress, if established, excused what would otherwise be criminal conduct. The defence was “peculiarly difficult” (at [20]) for the prosecution to investigate and disprove beyond reasonable doubt. Against this background, Lord Bingham went on to say (at [21]):

Although not directly relevant in Z, it is noteworthy that Lord Bingham’s speech contains no mention of the threat of false imprisonment possibly sufficing. It is plain that Lord Bingham had Lord Simon’s speech in Lynch (supra) well in mind, as he quoted other passages (than that set out above) with approval (at [22]):

Finally, Lord Bingham observed (ibid) that even where the strict requirements of duress were not satisfied, a Judge could “adjust his sentence” to reflect the defendant’s true culpability.

In M(L) (supra), referred to in more detail below in connection with the Trafficking Convention, Hughes LJ (Vice President), when outlining the defence of duress, spoke only of a “threat of death or serious injury” (at [8]). Granted that Hughes LJ was not there concerned with the present Issue, it is nonetheless of significance that in a trafficking context, he made no mention of the possibility of a threat of false imprisonment sufficing.

For our part, while repeating that this Issue cannot be regarded as settled by authority, we note the trend, in the observations of Rose LJ, Lord Bingham and Hughes LJ, to speak of the relevant threats as being those of death and serious injury. There is certainly nothing in any of the judgments in Abdul-Hussain, Z or M(L), to lend any encouragement to widening the defence by treating the threat of false imprisonment as sufficing.

Given the provisional nature of our judgment on this Issue, we do not think it necessary to deal with either the comparative material or the views expressed by the Law Commission, to which we were referred.

(3) Policy: In our judgment, even if only provisionally, policy considerations point strongly towards confining the defence of duress to threats of death or serious injury and against extending the defence to treat threats of false imprisonment as sufficing. Our reasons follow.

First, there are the difficulties of proof alluded to by Lord Bingham in Z (supra), at [20]. These should not be underestimated. If once the evidence is sufficient to permit the defence to be raised, the burden is on the prosecution to disprove it to the criminal standard. In practical terms, the defence may consist of little more than assertions, only expanded upon at trial. It would be all too easy to assert a threat of false imprisonment, especially if it is unnecessary for any such assertion to be underpinned by a threat of death or serious injury.

Secondly, having regard to Lord Simon of Glaisdale’s words of warning as to the ramifications of the defence of duress, highlighted by Lord Bingham in Z (supra) at [22] and set out above, it must be right to hesitate before permitting a widening of the defence and thus its more ready availability.

Thirdly, with respect to Mr. Unwin, we are not persuaded that the other limitations of the defence would furnish a sufficient safeguard against unwarranted over-reliance on the defence, if once broadened to encompass the threat of false imprisonment without the threat of death or serious injury.

Fourthly, confining the defence within its present relatively narrow limits does not preclude doing justice when sentencing, to reflect a defendant’s true culpability – even if, on the facts, falling short of the requirements for reliance on duress: see Z (supra), at [22].

Accordingly, the policy considerations, foreshadowed in authority, point strongly towards confining the threats necessary to establish duress to those of death or serious injury. For completeness, we are not at all persuaded that it would be illogical to draw the line there but, however that may be, we would in this area place the requirements of practical policy ahead of those of strict logic. All that said, as already explained, our view remains provisional rather than final.

This Court was anxious to await the judgment in N (supra), dealing as it did with the Trafficking Convention, before expressing any conclusion on these appeals. In the event, it has not been contended on behalf of the Appellants that anything said in N could have an impact on our conclusion under Issue (I), where we assumed in the Appellants’ favour that the scope of duress extended to false imprisonment and were nonetheless satisfied of the safety of the convictions. For the avoidance of doubt, any such submission would have been hopeless. What remains is the Appellants’ submission that the United Kingdom’s obligations under the Trafficking Convention point in favour of the Appellants’ submissions under Issue (II) as to the scope of the defence of duress. With respect, we do not agree. Although this Issue too is academic it may be helpful if we state our view: in our judgment, for the reasons which follow, the Trafficking Convention provides no assistance to the Appellants’ submissions in that regard. Put another way, the Trafficking Convention sheds no light on the true scope of duress.

Art. 26 of the Trafficking Convention provides as follows:

As explained by Hughes LJ in M(L) (supra), at [7], Art. 26 is implemented in this jurisdiction through the common law defences of duress and necessity, specific rules for the guidance of prosecutors and, if need be, the Court’s power to stay proceedings as an abuse of process. With regard to duress, Hughes LJ said this (at [8]):

Importantly for present purposes, Hughes LJ went on (at [13]) to invite careful attention to Art. 26:

We turn to N (supra). Giving the judgment of the Court, Lord Judge CJ said this:

Having referred, approvingly, to M(L) (supra), Lord Judge observed (at [21]) that the proper implementation of the United Kingdom’s obligation under Art. 26

Pulling the threads together:

By its nature, trafficking may give rise to a consideration of whether defences such as duress or duress of circumstances are available. We can, however, find nothing in either M(L) or N, which has any bearing whatever on the true scope of the common law defences of duress or duress of circumstances; per contra, the observations of Hughes LJ in M(L), at [8], rejected any “special modification” of these defences.

As emphasised by both Hughes LJ, in M(L) and Lord Judge CJ in N, Art. 26 confers no blanket immunity and must be applied on a fact sensitive basis. Furthermore, as underlined in N, its implementation calls for no new principles but rather the application of well established principles.

Substantive defences aside, those well established principles relate to the application, in the context of Art. 26, of (1) the discretion to proceed or continue with a prosecution; (2) the jurisdiction to stay proceedings for abuse of process; and (3) the sentencing decision.

In an appropriate case, there is thus ample scope, to give effect to Art. 26 where the defence of duress is not available. So, for example, it may be inappropriate to proceed with a prosecution of a defendant who cannot raise the defence of duress but nonetheless “falls within the protective ambit of Article 26”: N, at [21].

For completeness, nothing in the Guidance issued by the Crown Prosecution Service on Human Trafficking and Smuggling, to which Mr. Unwin drew our attention, dissuades us from our conclusions thus far. With respect, valuable though this Guidance is, it constitutes guidance not authority. Further, insofar as it does make mention of false imprisonment, having regard to the “wider factors” in the context of trafficking, there may well be good sense in prosecutors keeping in mind whether a victim of trafficking has been held captive; regardless of their impact on any substantive defence, such considerations may well bear on the decision to prosecute and the question of punishment. Still further, it is not to be overlooked that in the trafficking context, as elsewhere, the threat of violence may well be reinforced by incarceration.