R v Hasan (Aytach)
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 17 March 2005 |
| Neutral Citation | [2005] UKHL 22 |
| Date | 17 March 2005 |
| Court | House of Lords |
(On Appeal from the Court of Appeal (Criminal Division))
(formerly
(2003) (On Appeal from the Court of Appeal (Criminal Division))
[2005] UKHL 22
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
My Lords,
This appeal by the Crown against the decision of the Criminal Division of the Court of Appeal (Rix LJ, Crane J and Judge Maddison: [2003] EWCA Crim 191, [2003] 1 WLR 1489, sub nom R v Z) raises two questions. The first concerns the meaning of "confession" for the purposes of section 76(1) of the Police and Criminal Evidence Act 1984. The second concerns the defence of duress.
Anonymity
At trial in the Central Criminal Court, the name of the defendant Aytach Hasan ("the defendant") and the names of the main participants in the proceedings were given in open court. But two of those participants (Frank Sullivan and Claire Taeger) were then awaiting trial and the trial judge, His Honour Judge Paget QC, properly made an order under section 4(2) of the Contempt of Court Act 1981 prohibiting the publication of their names or any information concerning them or their forthcoming trial. This trial has now taken place and the order has been discharged. In the Court of Appeal the names of the defendant, then the appellant, and the main participants were anonymised and the case was reported as R v Z. An order was made under section 11 of the 1981 Act prohibiting any publication, save in a complete report of the judgment or in a legal journal, of the fact that the defendant had spoken to a police officer about Sullivan and Taeger and of that officer's report of the conversation. Having invited submissions from the parties, I am of the clear opinion that the Court of Appeal had no power under section 11 to restrain publication of evidence given in open court and referred to openly in the judge's summing up. In this opinion the names of the main participants will accordingly be used.
The facts
In brief summary, the relevant facts are these. The defendant had worked as a driver and minder for Claire Taeger, who ran an escort agency and was involved in prostitution. In about July or August 1999, according to the defendant, Sullivan became Taeger's boyfriend and also her minder in connection with her prostitution business. He had, the defendant said, the reputation of being a violent man and a drug dealer.
The prosecution alleged that on 29 August 1999 a man living in Croydon telephoned Taeger's agency asking for the services of a prostitute. The defendant went to the address with a prostitute. But the client had changed his mind and claimed that he had not made a telephone call. The defendant insisted that a £50 cancellation fee be paid, and forced his way into the house, producing a knife and demanding payment. The client went upstairs and opened a safe, whereupon the defendant took some £4000 from it and ran from the house. This incident founded the first count of aggravated burglary in the indictment later preferred against the defendant. But his account of the incident was quite different. He said that he had been given the £50 fee without any threat and had taken nothing from the safe. But he said that after this incident he had reported the existence of the safe and its contents to Taeger in the presence of Sullivan.
According to the defendant, his work for Taeger fell off with the arrival of Sullivan, who urged Taeger to get rid of him. There was a row in October or November 1999 and he stopped working for Taeger. But she lived in a flat which the defendant let to her, and she owed him outstanding rent. As security for this, he said, Sullivan made a red Rover car available to him, which he parked outside this flat. The next day it was gone, and he assumed that Taeger had a key and had taken it.
According to the defendant's evidence at trial, he saw Sullivan shortly before Christmas 1999. Sullivan said he was short of cash as he was doing a big cocaine deal. He wanted the key to the Rover, which the defendant said he would look for. Just after Christmas 1999, the defendant said, Sullivan visited him again. He again spoke of a cocaine deal, giving the defendant to believe he had killed two dealers. He also spoke of killing another man by injecting him with a heroin overdose. He offered to show the defendant the body of a man, Bryan Davies, in the boot of the Rover.
The second count of aggravated burglary in the indictment against the defendant related to an incident on 23 January 2000, involving the same house and the same victim as the earlier incident. The defendant admitted at trial that he had forced his way into the house on this occasion, armed with a knife, and had attempted to steal the contents of the safe, but claimed that he had acted under duress exerted by Sullivan, who had fortified his reputation for violence by talking of three murders he had recently committed. On the day in question, the defendant claimed, he had been ambushed outside his home by Sullivan and an unknown black man whom he described as a "lunatic yardie". Sullivan demanded that the defendant get the money from the safe mentioned on the earlier occasion, and told the defendant that the black man would go with him to see that this was done. Sullivan said that, if the defendant did not do it, he and his family would be harmed. The defendant claimed that he had no chance to escape and go to the police. The black man drove the defendant to the house and gave him a knife, saying that he himself had a gun. The defendant then broke into the house and tried unsuccessfully to open and then to remove the safe. The black man was in the vicinity throughout, and drove him away when the attempt failed.
Bryan Davies had died of a heroin overdose on 16 December 1999. On 14 April 2000 his body was discovered in the boot of the Rover, and the police believed that he had been injected with a fatal dose. Sullivan and Taeger were arrested and when interviewed said that the defendant had had the Rover in December 1999. They were awaiting trial at the time of the defendant's trial.
On 5 June 2000 the defendant was arrested and interviewed in relation to the two burglaries. He denied any involvement in either. The victims of the second burglary then identified him on an identification parade. He was charged and produced a note which began "I rely on duress". He gave no detailed particulars.
On 26 June 2000 the defendant was interviewed, in the presence of his solicitor, by police investigating the death of Bryan Davies. He made a witness statement, describing his relationship with Sullivan and Taeger and explaining how the Rover had come to be outside his flat, where Taeger lived, before Christmas 1999. He then had an off-the-record conversation with the police, which my noble and learned friend Lord Steyn has described in paras 45 and 46 of his opinion.
By a defence statement dated 4 August 2000 the defendant gave further details of his defence of duress, claiming that he had been coerced into committing the second burglary by Sullivan.
The defendant's trial on two counts of aggravated burglary began on 30 January 2001 and ended on 9 February. The jury acquitted him on the first count but convicted him on the second. He was sentenced to 9 years' imprisonment.
Lord Steyn has recounted the course of the trial and summarised the trial judge's ruling on the confession issue under section 76 of PACE, and has quoted the judgment of the Court of Appeal on this question: see paras 47-49 and 60 of his opinion. I am in complete agreement with his reasoning, and I share his conclusion. I shall therefore confine this opinion to the issue of duress.
On that issue the judge put four questions to the jury:
"Question 1: Was the defendant driven or forced to act as he did by threats which, rightly or wrongly, he genuinely believed that if he did not burgle [the] house, his family would be seriously harmed or killed? If you are sure that he was not forced by threats to act as he did, the defence fails and he is guilty. But if you are not sure go on to question 2. Would a reasonable person of the defendant's age and background have been driven or forced to act as the defendant did? If you are sure that a reasonable person would not have been forced to act as the defendant did, then the defence fails and he is guilty. If you are not sure, then go on to question 3. Could the defendant have avoided acting as he did without harm coming to his family? If you are sure he could, the defence fails and he is guilty. If you are not sure go on to question 4. Did the defendant voluntarily put himself in the position in which he knew he was likely to be subjected to threats? If you are sure he did, the defence fails and he is guilty. If you are not sure, he is not guilty. Those four questions are really tests."
The first of these questions repeated in substance a question the judge had already framed for the consideration of the jury. In his earlier direction he had explained the second question somewhat more fully:
"The second question is: Would a reasonable person, of the defendant's age and background, have been forced and driven to act as the defendant did? That question is necessary because everybody has to be judged by the same standards. The reactions of a reasonable person may or may not be the same as the reactions of any particular defendant. You represent society and you set the standards of what is reasonable. In judging what a reasonable person would do, you are not expected to imagine a saint and that is why I say a reasonable person of the defendant's age...
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Subject Index
...EWCACrim 174........................................................2 08R v Harry (1986) 86 Cr App R 105 ............. 116R v Hasan [2005] UKHL 22 ................ 225, 226R v Hayter [2005] UKHL 6 ............................22 4R v Hem (1989) 72 CR (3d) 233 (BC Co Ct) .. .10 3R v Hoare and......
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