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					COURT OF APPEAL

R v SHARP [1987] 1 QB 853

April 7 1987

Full text

Editor’s comments in red.

LORD LANE CJ:
…
The circumstances which gave rise to the charge of murder were the
culmination of what was in effect a series of armed robberies committed
upon sub-post offices. …

… At about midday on 23 August Alderson and Hussey, both of whom
were armed with sawn-off shotguns, in the company of the appellant, held
up a sub-post office in Hounslow. They wore wigs. Hussey threatened the
wife of the postmaster, whereupon the postmaster himself pressed the
alarm. All three then ran off to the getaway car empty handed, because
they had not time, after the sounding of the alarm, to take any of the money
which they had coveted. Hussey tried to fire his gun in the air in order to
discourage anyone who was minded to pursue them. His first attempt to
fire the gun failed, but his second attempt succeeded, and a pellet from that
gun in fact hit Alderson, one of the other miscreants, in the ear.

The importance of that incident is this, that both Alderson and Sharp as a
result of that knew the sort of man with whom they were associating in the
commission of these offences and the predilection which Hussey had for
loaded weapons. They must have known also that any attempt in the future
by an unlucky postmaster to press the alarm button would be viewed by
Hussey with disfavour to say the least.

On 14 September 1984 the sub-post office at Wraysbury, near Staines, was
the subject of a reconnaissance by the appellant and the two other men.
Then they determined to attack the office. Alderson and Hussey once again
carried loaded sawn-off shotguns. A further weapon, a pump action
shotgun, was left in the getaway car. Hussey’s gun was loaded with a
particular venomous sort of shot, namely, buckshot. Sharp was responsible
for locking the post office door after the three of them had entered.
Alderson moved towards the wife of the sub-postmaster and Hussey went
to the post office area of this little shop. Hussey then shot the sub-
postmaster in the head at close range: the ballistic expert thought about two
or three feet. The unfortunate postmaster died instantly. As he fell, so
money was scattered. Alderson took the opportunity to hit the sub-
postmaster’s wife on the head with his gun three times. That was in order
to try to stop her screaming, which, not surprisingly, she had started to do.
Once outside, Alderson shot at the tyre of a parked vehicle which belonged
to the sub-postmaster in order plainly to impede anyone who might be
minded to pursue them.

Hussey … was convicted of murder. … Alderson at first denied that he had
taken part in the matter at all, but eventually went on to admit his part in
the affair and he was in due course convicted of manslaughter.

Sharp put forward the contention that he had been invited indeed to take
part in these robberies and had willingly acceded to the invitation. He was
the ‘bagman,’ as he put it, the man carrying the bag in which the loot, if
any, would be contained. He regarded Hussey in the vernacular as a
‘nutcase.’ He, Sharp, did not wish any weapons to be used, so he said. He
said that he panicked when he saw the guns being loaded into the car. He
thought they were blanks, so he said. He wanted to pull out, but he lost his
nerve and he carried on despite his wish to withdraw from the conspiracy,
because Hussey pointed a gun at him and threatened to blow his head off if
he did not carry on with the plan to rob the post office. He, Sharp, did not
carry a gun. He said he had thought of sabotaging either the gun or the
ammunition by using some salt, but he did not get the opportunity.

So stood the case. Counsel for the appellant, Mr. Mylne, who appeared for
him in the court below as he appears for him today, submitted to the judge
that his client was entitled to rely upon duress as a defence to the charges
of murder and manslaughter. …
…
[T]he judge [ruled that] … duress is not available to a man who … has the
necessary knowledge, and with the necessary knowledge joins the gang of
miscreants.

… [E]verything in this appeal depends upon whether the judge was correct
or not in ruling that a defendant who has voluntarily joined a gang such as
this cannot subsequently rely upon the defence of duress.
…
No one could question that if a person can avoid the effects of duress by
escaping from the threats, without damage to himself, he must do so. In
other words if there is a moment at which he is able to escape, so to speak,
from the gun being held at his head by Hussey, or the equivalent of
Hussey, he must do so. It seems to us to be part of the same argument, or at
least to be so close to the same argument as to be practically
indistinguishable from it, to say that a man must not voluntarily put
himself in a position where he is likely to be subjected to such compulsion.

… [W]e are fortified in the view … that this is part of the common law and
always has been, by … the speeches of their Lordships in Director of
Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653 [in the
Library]. …

First of all in the speech of Lord Morris of Borth-y-Gest appears this
passage, at p. 668:

‘Where duress is in issue many questions may arise such as whether threats
are serious and compelling or whether (as on the facts of the present case
may specially call for consideration) a person the subject of duress could
reasonably have extricated himself or could have sought protection or had
what has been called a ‘safe avenue of escape.’ Other questions may arise
such as whether a person is only under duress as a result of being in
voluntary association with those whom he knew would require some
course of action. …’

A little later Lord Morris of Borth-y-Gest again said, at p. 670:

‘In posing the case where someone is ‘really’ threatened I use the word
‘really’ in order to emphasise that duress must never be allowed to be the
easy answer of those who can devise no other explanation of their conduct
nor of those who readily could have avoided the dominance of threats nor
of those who allow themselves to be at the disposal and under the sway of
some gangster-tyrant. Where duress becomes an issue courts and juries
will surely consider the facts with care and discernment.’

Here of course … Hussey was the archetypal gangster-tyrant.
…
Finally, … the speech of Lord Simon of Glaisdale … at p. 687:
‘I spoke of the social evils which might be attendant on the recognition of
a general defence of duress. Would it not enable a gang leader of notorious
violence to confer on his organisation by terrorism immunity from the
criminal law? Every member of his gang might well be able to say with
truth, ‘It was as much as my life was worth to disobey.’ … We do not, in
general, allow a superior officer to confer such immunity on his
subordinates by any defence of obedience to orders: why should we allow
it to terrorists? Nor would it seem to be sufficient to stipulate that no one
can plead duress as a defence who had put himself into a position in which
duress could be exercised on himself.’
…
…In … our judgment, where a person has voluntarily, and with knowledge
of its nature, joined a criminal organisation or gang which he knew might
bring pressure on him to commit an offence and was an active member
when he was put under such pressure, he cannot avail himself of the
defence of duress. … The appeal is therefore dismissed.

Full text

LORD LANE CJ:

On 21 May 1985 in the Crown Court at Reading before Kenneth Jones J.
and a jury, the appellant, David Bruce Sharp, was charged with murder. He
was eventually convicted of manslaughter. Then he pleaded guilty to the
remaining counts in the indictment against him. He was sentenced as
follows. In respect of count 2, which was an attempted robbery at
Hounslow, he was sentenced to 15 years’ imprisonment. On count 3,
robbery, to which he pleaded guilty - that was a robbery at Wraysbury - he
was sentenced to 16 years’ imprisonment. On the manslaughter to which I
have referred, which arose from the same incident at Wraysbury, he was
sentenced to 16 years’ imprisonment, all those sentences to run
concurrently. He was jointly charged with two other men: Alderson and
Hussey. Hussey was convicted of murder in respect of the Wraysbury
offence. The appellant now appeals against conviction by leave of the
single judge.

The circumstances which gave rise to the charge of murder were the
culmination of what was in effect a series of armed robberies committed
upon sub-post offices. They culminated in the Wraysbury offence which
resulted in the death of the sub-postmaster at that place.
Count 2, the Hounslow robbery, to which the appellant pleaded guilty,
concerned the following facts, and they are of relevance to the main issue.
At about midday on 23 August Alderson and Hussey, both of whom were
armed with sawn-off shotguns, in the company of the appellant, held up a
sub-post office in Hounslow. They wore wigs. Hussey threatened the wife
of the postmaster, whereupon the postmaster himself pressed the alarm. All
three then ran off to the getaway car empty handed, because they had not
time, after the sounding of the alarm, to take any of the money which they
had coveted. Hussey tried to fire his gun in the air in order to discourage
anyone who was minded to pursue them. His first attempt to fire the gun
failed, but his second attempt succeeded, and a pellet from that gun in fact
hit Alderson, one of the other miscreants, in the ear.

The importance of that incident is this, that both Alderson and Sharp as a
result of that knew the sort of man with whom they were associating in the
commission of these offences and the predilection which Hussey had for
loaded weapons. They must have known also that any attempt in the future
by an unlucky postmaster to press the alarm button would be viewed by
Hussey with disfavour to say the least.

On 14 September 1984 the sub-post office at Wraysbury, near Staines, was
the subject of a reconnaissance by the appellant and the two other men.
Then they determined to attack the office. Alderson and Hussey once again
carried loaded sawn-off shotguns. A further weapon, a pump action
shotgun, was left in the getaway car. Hussey’s gun was loaded with a
particular venomous sort of shot, namely, buckshot. Sharp was responsible
for locking the post office door after the three of them had entered.

Alderson moved towards the wife of the sub-postmaster and Hussey went
to the post office area of this little shop. Hussey then shot the sub-
postmaster in the head at close range: the ballistic expert thought about two
or three feet. The unfortunate postmaster died instantly. As he fell, so
money was scattered. Alderson took the opportunity to hit the sub-
postmaster’s wife on the head with his gun three times. That was in order
to try to stop her screaming, which, not surprisingly, she had started to do.
Once outside, Alderson shot at the tyre of a parked vehicle which belonged
to the sub-postmaster in order plainly to impede anyone who might be
minded to pursue them.

Hussey, as already stated, was convicted of murder. The jury, not
unnaturally, rejected his contention that the gun may have been discharged
by accident. Alderson at first denied that he had taken part in the matter at
all, but eventually went on to admit his part in the affair and he was in due
course convicted of manslaughter.

Sharp put forward the contention that he had been invited indeed to take
part in these robberies and had willingly acceded to the invitation. He was
the ‘bagman,’ as he put it, the man carrying the bag in which the loot, if
any, would be contained. He regarded Hussey in the vernacular as a
‘nutcase.’ He, Sharp, did not wish any weapons to be used, so he said. He
said that he panicked when he saw the guns being loaded into the car. He
thought they were blanks, so he said. He wanted to pull out, but he lost his
nerve and he carried on despite his wish to withdraw from the conspiracy,
because Hussey pointed a gun at him and threatened to blow his head off if
he did not carry on with the plan to rob the post office. He, Sharp, did not
carry a gun. He said he had thought of sabotaging either the gun or the
ammunition by using some salt, but he did not get the opportunity.

So stood the case. Counsel for the appellant, Mr. Mylne, who appeared for
him in the court below as he appears for him today, submitted to the judge
that his client was entitled to rely upon duress as a defence to the charges
of murder and manslaughter. There then took place a series of submissions
by counsel to the judge and a ruling by the judge.

There was plainly a misunderstanding between the judge and Mr. Mylne as
to what it was that the judge had in fact ruled. As some of the grounds of
appeal are based upon that misconception, it is necessary perhaps very
briefly to refer to them, although as matters have turned out today, they are
not vital to the determination of this appeal.

Counsel thought that the judge was ruling that the defence of duress was
not open to the appellant on three grounds:

(a) such a defence is only available where the defendant discharges the
evidential burden of proof sufficient to show that there is something fit for
the jury to consider in the way of duress;

(b) the defence of duress is not available to a man who has voluntarily
joined an organisation or a gang which he knows might compel him to
commit serious crimes similar to those with which he is charged; and
(c) the evidence was such that the jury could come to no conclusion other
than the appellant had voluntarily joined such a gang.

That was plainly counsel’s understanding of the matter, which was based
upon a passage in the judge’s ruling which initially gave that impression.
In fact the judge, as is clear if one reads the passage as a whole, was taking
the view that all he had ruled upon was point (b), namely, that duress is not
available to a man who, to put it briefly, has the necessary knowledge, and
with the necessary knowledge joins the gang of miscreants.

There is no need to go further into that misconception, because Mr. Mylne
now agrees that everything in this appeal depends upon whether the judge
was correct or not in ruling that a defendant who has voluntarily joined a
gang such as this cannot subsequently rely upon the defence of duress.

So we turn to examine the situation which lies behind Mr. Mylne’s
submission to the judge, and again the submissions to this court, namely,
that the common law knows no such exception to the defence of duress.
Mr. Mylne realistically is the first to concede that pragmatically, to use his
own word, and realistically, the judge’s interpretation of the law was
desirable, if not essential, if justice is to be done in circumstances such as
existed in the present case. But he submits that it is not for this court, or
indeed any other court, to usurp the function of Parliament and to introduce
into the common law a rule which, in his submission, has never previously
been held to form part of it.

No one could question that if a person can avoid the effects of duress by
escaping from the threats, without damage to himself, he must do so. In
other words if there is a moment at which he is able to escape, so to speak,
from the gun being held at his head by Hussey, or the equivalent of
Hussey, he must do so. It seems to us to be part of the same argument, or at
least to be so close to the same argument as to be practically
indistinguishable from it, to say that a man must not voluntarily put
himself in a position where he is likely to be subjected to such compulsion.

Mr. Mylne, I hope, will forgive us if we do not refer to all the citations
which he made of authority. He read to us lengthy extracts from the
decision in Reg. v. Tyler (1838) 8 C. & P. 616, and a further passage from
Glanville Williams, Criminal Law, 2nd ed. (1961), pp. 751 et seq. which
do not, if we may say so respectfully, seem to advance the argument one
way or the other. But we are fortified in the view which I indicate, which,
to jump ahead, is that this is part of the common law and always has been,
by certain matters which appear in the speeches of their Lordships in
Director of Public Prosecutions for Northern Ireland v. Lynch[1975] A.C.
653. Although Lynch’s case has been the subject of certain adverse
comment since the date of those speeches, nevertheless the passages to
which we wish to refer have not, as far as we know, been the subject of
criticism.

First of all in the speech of Lord Morris of Borth-y-Gest appears this
passage, at p. 668:

‘Where duress is in issue many questions may arise such as whether threats
are serious and compelling or whether (as on the facts of the present case
may specially call for consideration) a person the subject of duress could
reasonably have extricated himself or could have sought protection or had
what has been called a ‘safe avenue of escape.’ Other questions may arise
such as whether a person is only under duress as a result of being in
voluntary association with those whom he knew would require some
course of action. In the present case, as duress was not left to the jury, we
naturally do not know what they thought of it all.’

A little later Lord Morris of Borth-y-Gest again said, at p. 670:

‘In posing the case where someone is ‘really’ threatened I use the word
‘really’ in order to emphasise that duress must never be allowed to be the
easy answer of those who can devise no other explanation of their conduct
nor of those who readily could have avoided the dominance of threats nor
of those who allow themselves to be at the disposal and under the sway of
some gangster-tyrant. Where duress becomes an issue courts and juries
will surely consider the facts with care and discernment.’

Here of course, I interpolate, Hussey was the archetypal gangster-tyrant.

I turn from Lord Morris of Borth-y-Gest to the speech of Lord
Wilberforce, at p. 679:

‘It is clear that a possible case of duress, on the facts, could have been
made. I say ‘a possible case’ because there were a number of matters
which the jury would have had to consider if this defence had been left to
them. Among these would have been whether Meehan, though uttering no
express threats of death or serious injury, impliedly did so in such a way as
to put the appellant in fear of death or serious injury; whether, if so, the
threats continued to operate throughout the enterprise; whether the
appellant had voluntarily exposed himself to a situation in which threats
might be used against him if he did not participate in a criminal enterprise
(the appellant denied that he had done so); whether the appellant had taken
every opportunity open to him to escape from the situation of duress. In
order to test the validity of the judge’s decision to exclude this defence, we
must assume on this appeal that these matters would have been decided in
favour of the appellant.’

Finally, so far as the passages in favour of the contention which we are
supporting are concerned, in the speech of Lord Simon of Glaisdale
appears this passage, at p. 687:

‘I spoke of the social evils which might be attendant on the recognition of
a general defence of duress. Would it not enable a gang leader of notorious
violence to confer on his organisation by terrorism immunity from the
criminal law? Every member of his gang might well be able to say with
truth, ‘It was as much as my life was worth to disobey.’ Was this not in
essence the plea of the appellant? We do not, in general, allow a superior
officer to confer such immunity on his subordinates by any defence of
obedience to orders: why should we allow it to terrorists? Nor would it
seem to be sufficient to stipulate that no one can plead duress as a defence
who had put himself into a position in which duress could be exercised on
himself.’

In deference to Mr. Mylne, we turn finally to a passage in the speech of
Lord Kilbrandon, who, in his opening words, said, at p. 699:

‘My Lords, the learned trial judge directed the jury to the effect that the
defence of duress is not available as exculpation in a charge of murder,
whether the accused has been charged as a principal in the first or in the
second degree. In my opinion, that direction correctly stated the law as it
then stood and now stands. It is my misfortune that while I agree with
those of your Lordships who consider that that law is in a very
unsatisfactory state, and is in urgent need of restatement, I remain
convinced that the grounds upon which the majority propose that the
conviction of the appellant be set aside involve changes in the law which
are outside the proper functions of your Lordships in your judicial
capacity.’
Mr. Mylne submits, as already indicated, that that view is a correct one,
that it is not for this court to extend by judicial interpretation what he
submits is the present state of the common law.

We draw assistance from the fact that common law jurisdictions as well as
Commonwealth jurisdictions throughout the world have adopted this rule
almost unanimously (although the wording in their various statutes differs
the one from the other), which is an indication to us that this may well
have been, and indeed was, throughout a principle of the common law.

The matter was stated clearly by Winneke C.J. of the State of Victoria in
Reg. v. Hurley and Murray[1967] V.R. 526, decided in the Supreme Court
of Victoria. Before turning to the passage in the judgment of Winneke C.J.,
let me just read part of the headnote, in order to summarise the effect of the
decision:

‘Held... (2) Whether or not the matters raised by M could amount to a
defence of duress, that defence was not available to him in the present case
because he had voluntarily, and without any threat to himself, joined in the
criminal enterprise and could not excuse his conduct by showing that he
had subsequently been subjected to threats of violence to ensure that he did
not withdraw from the enterprise.’

Turning to the judgment of Winneke C.J., which was the majority
judgment of the court, the passage runs as follows, at p. 533:

‘Tyler’s case, 8 C. & P. 616 was cited to us by Mr. Gaffy (who appeared
for the Crown) as authority for the proposition contained in the last
sentence of the passage quoted above from Dr. Glanville Williams’ book,
but it is plain on consulting the report that Lord Denman did not in his
charge to the jury advert to the matter at all.’

If I may interpolate there, that is a statement with which this court entirely
agrees. Winneke C.J. went on:

‘There is thus nothing in his charge to the jury which is authority for Dr.
Glanville Williams’ statement. Nevertheless, we are persuaded that it is
both good law and good sense, and that a person who without threat of
death or serious violence voluntarily makes himself a party to a criminal
enterprise cannot excuse his criminal conduct in participating in that
enterprise by showing that after he had embraced the cause he was
subjected to threats of violence at the hands of the other parties to ensure
that he did not resile from the bargain he had voluntarily entered into.’

That was the precise description of what happened in this case between the
appellant and Hussey.
Then Winneke C.J. went on to cite from the Criminal Codes of
Queensland, Western Australia and Tasmania, each of which contained a
provision to that very effect. He cited the first Criminal Code from Canada.
He cited the New Zealand codification of the criminal law, and he cited
also the well-known American textbook, Perkins on Criminal Law (1957),
where the following passage appears, at p. 843:

‘If D for example is compelled under threat of death to provide a getaway
car for robbers, or to assist them in some other way, he is not guilty of
robbery.... He cannot be a perpetrator of a robbery of which he is innocent.
This is not comparable in any way to the claim that one who willingly
joins in the robbery was compelled during the perpetration to do something
against his will. Such a claim will be rejected because the situation was the
result of extreme culpability on his part.’

Two American decisions are cited there by name.

We are therefore, in the light of that persuasive authority and the
indications in their Lordships’ speeches in Director of Public Prosecutions
for Northern Ireland v. Lynch[1975] A.C. 653 of the opinion that the
judge, Kenneth Jones J., was correct in the decision which he reached.

We are further fortified in that view by the judgment of Lord Lowry C.J. of
Northern Ireland, in Reg. v. Fitzpatrick[1977] N.I. 20. Let me read the
brief headnote once again in order to indicate the nature of the decision. It
runs as follows:

‘If a person by joining an illegal organisation or a similar group of men
with criminal objectives and coercive methods, voluntarily exposes and
submits himself to illegal compulsion, he cannot rely on the duress to
which he has voluntarily exposed himself as an excuse either in respect of
the crimes he commits against his will or in respect of his continued but
unwilling association with those capable of exercising upon him the duress
which he calls in aid.’
Turning to the body of the judgment, there are just three passages which
we would like to cite to indicate the way in which the judgment of Lord
Lowry C.J. went. The first reads, at p. 22:

‘the judge held that, having joined the I.R.A. and voluntarily exposed
himself to the risk of compulsion by the I.R.A. to commit crimes on its
behalf, the appellant was not entitled to rely on the defence of duress
exercised by that organisation. In so holding the learned trial judge cited
the well known passage from Stephen’s History of the Criminal Law of
England, vol. 2, p. 108, which was referred to by Lord Edmund-Davies in
Reg. v. Lynch [1975] N.I. 35, 112: ‘If a man chooses to expose and still
more if he chooses to submit himself to illegal compulsion, it may not
operate even in mitigation of punishment. It would surely be monstrous to
mitigate the punishment of a murderer on the ground that he was a member
of a secret society by which he would have been assassinated if he had not
committed murder."

The second passage reads, at p. 23:

‘Counsel on both sides have informed us that the point is devoid of judicial
authority and we have not found anything to suggest the contrary.
Therefore we have to decide, in the absence of judicial decisions, what is
the common law. Assistance may be sought from the opinions of
textwriters, judicial dicta and the reports of Commissions and legal
committees, and from analogies with legal systems which share our
common law heritage, with a view to considering matters of general
principle and arriving at the answer. Mr. Curran drew to our attention the
penal codes of Canada, New Zealand and the State of Queensland and we
have also considered among others the penal codes of Western Australia
and the State of New York as well as the draft code of 1879 prepared by
the Royal Commission of which Mr. Justice Stephen was a member and
the American Model Penal Code. All these codes and draft codes contain
various provisions withholding from members of unlawful organisations
the right to rely on a defence of duress.’

Then Lord Lowry C.J. cites two extracts from the various codes and
authorities which he indicates in precis in the passage which I have read.
There is no need for us to go into that and there is no need for us to cite
further from Lord Lowry C.J., except for one passage, where he said, at p.
26:
‘We consider that the widespread adoption of such limiting provisions with
regard to duress shows that the framers of the codes and drafts which we
have mentioned considered that this exclusory doctrine was already part of
the common law and the Law Commission’s recommendation indicates the
view of a distinguished body of jurists, (whose recommendations are in
general favourable to duress as a defence), that participation in unlawful
associations or conspiracies should disqualify the accused from relying on
it.’

In other words, in our judgment, where a person has voluntarily, and with
knowledge of its nature, joined a criminal organisation or gang which he
knew might bring pressure on him to commit an offence and was an active
member when he was put under such pressure, he cannot avail himself of
the defence of duress. Mr. Mylne concedes that such a ruling is the end of
his appeal. The appeal is therefore dismissed.

				
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