R v Sharp
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 29 January 1993 |
| Judgment citation (vLex) | [1987] EWCA Crim J0407-1 |
| Docket Number | No. 3377/B/85 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 January 1993 |
[1987] EWCA Crim J0407-1
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Farquharson
and
Mr. Justice Gatehouse
No. 3377/B/85
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. N. MYLNE, Q.C. and MR. S. SMYTH appeared on behalf of the Appellant.
MR. D. HOLLIS, Q.C. and MR. A. LONGDEN appeared on behalf of the Crown.
On 21st May 1985 in the Crown Court at Reading before Mr. Justice Kenneth Jones and a jury, this 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 fifteen years' imprisonment. On count 3, robbery, to which he pleaded guilty - that WBB a robbery at Wraysbury - he was sentenced to sixteen years' imprisonment. On the manslaughter to which I have referred, which arose from the same incident at Wraysbury, he was sentenced to sixteen 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 this appellant pleaded guilty, concerned the following facts, and they are of relevance to the main issue. At about mid-day on 23rd August Alderson and Hussey, both of whom were armed with sawn-off shotguns, in the company of this 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 predeliction 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 14th September 1984 the sub-post office at Wraysbury, near Staines, was the subject of a reconnaisance 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 2 or 3 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", BB 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 Sharp, 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 learned 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 defendant 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, WBB 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. MyIne 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 submission 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...
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