Non-conviction Bad Character Evidence and Directions to the Jury on Use to Show Propensity R v Mitchell [2016] UKSC 55
| Author | Emma Engleby,Michael Stockdale |
| Published date | 01 April 2017 |
| Date | 01 April 2017 |
| DOI | http://doi.org/10.1177/0022018316686483 |
| Subject Matter | Court of Appeal |
Wolverhampton down to Dover, took the ferry to Calais and then drove to a service station on the
outskirts of the city where he was met by Molly. The pair of them drove to Holland to collect the drugs.
Bianco drove back to Calais, dropping Molly off near Ostend in Belgium, then caught the ferry to Dover.
At Bianco’s trial at Canterbury Crown Court, the trial judge refused to put the defence of duress to the
jury, who subsequently returned a guilty verdict. Bianco appealed, unsuccessfully. The Court of Appeal
held that the trial judge had correctly withdrawn the defence for two reasons: (i) Molly’s threat was too
vague and (ii) Bianco had several opportunities to escape and/or contact the police – during the drive
from Wolverhampton down to Dover; in France before he met up with Molly; and during the drive from
Ostend to Calais.
There are other principles underpinning the defence of duress that were not raised in the present case.
They include:
9. The threat must derive from an extraneous source, that is, from another person or from the
surrounding circumstances. Duress is not available if D perceives threats which are purely
internal, for example, suicidal thoughts (Rodger & Rose [1998] 1 Cr App R 143).
10. Duress is never a defence to murder (Howe [1987] AC 417, [1987] 2 WLR 568; Wilson [2007]
EWCA Crim 1251, [2007] 2 Cr. App. R. 31) or attempted murder (Gotts [1992] 2 AC 412,
[1992] 2 WLR 284), even if D is young (in both Gotts and Wilson D was a teenage boy
threatened by his own father).
11. Duress is otherwise potentially available as a defence to all crimes, some very serious offences
such as robbery (Sharp;Cole [1994] Crim LR 582; Baker & Ward [1999] 2 Cr App R 335),
aggravated burglary (Hasan), hijacking (Abdul-Hussain [1999] Crim LR 570; Safi & Others
[2003] EWCA Crim 1809, [2004] 1 Cr App R 14), firearms offences (Pommell;Gregory [2011]
EWCA Crim 1712) and causing GBH with intent (Cairns [1999] 2 Cr App R 137). Several cases
involve duress being invoked as a defence by those accused of drug dealing or trafficking, albeit
rarely successfully. Examples included Aikens [2003] EWCA Crim 1573; McDonald [2003]
EWCA Crim 1170; Heath;Harmer;Ortiz;Valderrama-Vega and Wright.Veryoften,the
defence fails in drugs cases for one or more of the grounds given in Brandford – the accused’s
voluntary association with known criminals and/or his or her failure to contact the police.
Tony Storey
Non-conviction Bad Character Evidence and Directions
to the Jury on Use to Show Propensity
RvMitchell [2016] UKSC 55
Keywords
Non-conviction bad character evidence, similar facts, jury directions, propensity
Facts: The defendant, Angeline Sara Jane Mitchell (D), having relied in her defence upon self-defence,
provocation and lack of intent, was convicted of the murder of her partner of three years, Anthony Robin
(V). D and V had been separated prior to the murder, but had continued to spend time together, and on
the night in question had spent an evening out together eating and drinking alcohol. D and V returned to
94 The Journal of Criminal Law 81(2)
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