Thomson v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 25 July 1983 |
| Docket Number | No. 12. |
| Date | 25 July 1983 |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Robertson, Ross.
Procedure—Trial—Special defences—Category of special defences—Coercion—Competency of coercion as special defence—Requirements for defence of coercion.
Two persons were tried in the High Court on charges of assault and robbery with firearms. An attempt to lodge a "special defence of coercion" for one accused was ruled incompetent by the trial judge. After argument later in the trial the judge, in the light of the evidence, allowed the isue of coercion to go to the jury and directed them accordingly. Both accused were convicted. One appealed, on the basic ground that "the trial judge misdirected the jury in law as to the circumstances which might validly constitute a defence of coercion."
Held (1) that a defence of coercion is a competent defence in limited circumstances, these normally being when it is based on present danger from present threats and is tested by these qualifications: (a) inability to resist violence; (b) a backward and inferior part in the perpetration of the crime, and (c)disclosure of the crime and restitution of the stolen property. The law as stated by Hume should be followed.
(2) If there is evidence in a case which supports a defence in law it ought to go to the jury, but the evidence must have that attachment. If it does not, then that evidence should not go to the jury. The trial judge had confined the issue of coercion to immediate danger from threats, and had given the proper directions in the circumstances of the case; and appeal refused.
H.M. Advocate v. Peters, [not reported] High Court of Justiciary, November 1968, R. v. KrayUNK (1969) 53 Cr. App. R. 569, R. v. HudsonELR [1971] 2 Q.B. 202,D.P.P. v. LynchELR [1975] A.C. 653, H.M. Advocate v. Docherty, [not reported] High Court of Justiciary, 3rd June 1976, H.M. Advocate v. M'Callum, [not reported] High Court of Justiciary, 19th May 1977, and Sayers v. H.M. AdvocateUNK, 1981 S.C.C.R. 312 referred to.
English law of duress compared with Scots law of coercion.
Oliver Thomson and another person were charged on indictment with several offences involving the robbery of a Post Office sorting-office, and including assault and the use of firearms. At the outset of the trial counsel for Thomson sought leave to have received late what was termed a "special defence of coercion." The trial judge (Lord Hunter) ruled that "the attempt to lodge a novel special defence of this nature was incompetent." Before counsel addressed the jury the question arose whether, if the jury were to accept the evidence led on behalf of Thomson, a verdict of acquittal would be open to them on the ground of coercion. Argument was heard, and the trial judge delivered the opinion that follows, concluding that the issue of coercion should be left with the jury, to whom he proposed to give directions along the lines indicated in the opinion.
LORD HUNTER'S OPINION.—At the outset of the present trial counsel for Thomson, the first panel, sought leave to have received late what was termed a "special defence of coercion." In my opinion the document did not fall within the category of special defences recognised by the criminal law and practice of Scotland, and I held that the attempt to lodge a novel special defence of this nature was incompetent. Although I was not treated at that stage to a full, or indeed any, citation of authority, the course which I adopted appeared to me to be consistent with the decision in H.M. Advocate v. CunninghamSC 1963 J.C. 80, and with what was said in the opinion of the Lord Justice-General in that case at page 83 where he observed that the categories of special defences are well known and have long been recognised in our law. I also had in mind certain observations in the opinion of the Court inLambie v. H. M. AdvocateSC 1973 J.C. 53, particularly at pages 57 and 59, which suggest that the category of special defences consist of alibi, self-defence and incrimination together with insanity, the last of which stands in a different position from the others in respect of onus of proof. No authority was cited to me, and I know of none, which suggests that a "special defence of coercion" is either well known or has long been recognised in our law.
When dealing with the question of competency I was aware of H.M. Advocate v. Peters and OthersUNK (1969) 33 J.C.L. 209, and also of the unreported cases of H.M. Advocate v. Docherty and Others, unrep. 3rd June 1976, and H.M. Advocate v. M'Callum, unrep. 19th May 1977. I have subsequently been referred to Sayers and Others v. H.M. AdvocateUNK 1981 S.C.C.R. 312, and particularly to the charge to the jury by the trial judge in that case at pages 318 to 320. It appears that in H.M. Advocate v. Peters and Others the trial judge allowed a "special defence of coercion" to be received "in hoc statu", although according to the report his Lordship had distinctly stated that he should certainly not be held to be expressing the opinion that in any ordinary case a special defence in such terms would be competent and allowed to go to the jury. I am, with respect, unable to understand how the course of admitting a special defencein hoc statu could competently be adopted at a time when it was the invariable practice for special defences to be read to the jury immediately after they had been sworn and before any evidence was led. The practice of reading special defences to the jury still prevails today, although I understand there was some natural hesitancy about continuing to follow the practice for a period after the decision inLambie v. H.M. Advocate cit. supra. I note in passing that there have been similar doubts about whether notices of incrimination under the amended provisions of section 82 of the Criminal Procedure (Scotland) Act 1975 should, like special defences, be read to the jury, although I understand that it has in general become the practice for this to be done. It was done in the present case, both panels having lodged such notices.
It is not clear from the charge of the trial judge in H.M. Advocate v. Docherty and Others whether a special defence based on coercion had been lodged or read to the jury in that case. I infer from the charge of the trial judge in H.M. Advocate v. M'Callum, at pp. 13 to 23 of the copy with which I have been provided, that a special defence of incrimination lodged in that case had contained a reference to coercion, but the matter appears to have been treated simply as a matter of fair notice to the Crown by the defence. While I agree that a case can be made for such fair notice to be given by the defence to the Crown, and also in appropriate circumstances to co-accused, when it is proposed to lead evidence of coercion on behalf of a panel, I was not satisfied that this could competently take the form of a "special defence" such as that which was attempted in the present case. For completeness I should add that it does not appear from the report of Sayers and Others v. H.M. Advocate cit. supra that there was any special defence in that case in which the matter of coercion was referred to, although the question of coercion was raised and considered in relation to the defence of one of the accused at the trial. In the circumstances the document lodged on behalf of the first panel in the present case was not read to the jury, although it was made clear that if it was proposed to lead evidence relating to coercion at a later stage or to seek directions on the matter such questions could and would be dealt with as they arose.
I have no doubt that evidence can in appropriate circumstances be led on behalf of an accused person to the effect that he had acted under coercion. There was no suggestion to the contrary by the High Court of Justiciary in the opinion delivered on 21st October 1976 in the appeal against conviction by one of the accused in H.M. Advocate v. Docherty and Others cit. supra (see page 2 of the opinion of the Court). Such evidence may, in my opinion, sound in mitigation and in some circumstances might justify a jury in appending a rider or recommendation to their verdict. In some respects the position may have analogies to provocation, although I would, until the question arises for decision, wish distinctly to reserve my opinion as to whether coercion could ever or in any circumstances affect the verdict in a case of murder. In the course of the present trial evidence has been led on behalf of the first accused, without objection from the Crown, which might, if accepted by the jury, suggest that he had, in taking part in certain stages of the criminal enterprise with which charge (1) in the indictment is concerned, been under some degree of coercion, using the word in a wide sense, by another person who took part in that enterprise. Such evidence might, as I have indicated, sound in mitigation, and it might be given appropriate weight in connection with any sentence imposed if the circumstances were considered to render that course appropriate.
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