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TRANSCRIPT OF THE APPEAL AGAINST LIFE
SENTENCE
Neutral Citation Number: [2004] EWCA
Crim 903
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 2nd April 2004
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE CRANE
MR JUSTICE HUNT
- - - - - - -
R E G I N A
-v-
CHARLES BRONSON (ALI AHMED)
- - - - - - -
Computer Aided Transcript of the
Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR D WHITEHOUSE QC & MR S FERGUSON
appeared on behalf of the APPELLANT
MR M HARRISON QC & MR D MCGONIGAL
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
(As Approved by the Court)
- - - - - - -
Crown copyright©
1. THE VICE PRESIDENT: On 17th
February 2002 at Luton Crown Court, following a trial before
His Honour Judge Moss, the appellant was convicted on count
1, of false imprisonment and on count 4, of damaging
property. He was sentenced on the first count to life
imprisonment, with a term specified to be served under
section 28 of the Crime Sentences Act 1997 of 3 years. No
separate penalty was imposed on count 4. He appeals by
leave of the Full Court given on 4th May 2001, following
refusal by the Single Judge. Leave was granted on the basis
that the trial judge's reference in summing-up to threats by
a person was arguably too narrow in identifying the form of
duress raised by way of defence. The Full Court also
referred to the Court hearing the conviction appeal a
renewed application in relation to sentence.
2. In summary, the prosecution case
was that, between about 2.00 pm on 1st February and 10.00 am
on 3rd February 1999, in the category A wing at Hull Prison,
a Mr Danielson, who was a prison teacher, was falsely
imprisoned by the appellant, who also, during the incident,
committed criminal damage.
3. The defence was duress of
circumstances. The appellant accepted that he may have
committed the criminal damage but he said that he was under
duress at the time. He said that, at times, Mr Danielson
had not been tied up and had been free to leave had he
wished. The appellant also said that he treated Mr
Danielson compassionately. In connection with false
imprisonment, he said he had been acting under duress.
4. The defendant, having dispensed
with his legal advisors, chose to represent himself at
trial. He did so, as is apparent from the transcript of the
proceedings which we have read, calmly, eloquently and with
considerable skill.
5. In a little more detail, the
incident giving rise to the counts in the indictment
occurred during the appellant's incarceration at Hull
Prison. He had been told, some little time before, that,
because of his improving behaviour, he would be staying at
Hull. But, three or four weeks after he had been told that
and, it seems, about two weeks before 1st February, the
appellant was told that the category A unit in which he was
held at Hull was going to be closed and he, together with
four others in the unit, was going to be moved. We shall
refer a little later to the evidence in relation to that.
6. Mr Danielson, the victim of the
false imprisonment, said that he had not wanted to be in the
category A wing at all. He had been kept there against his
will and not allowed to leave. He also said that he had
been more angry with the prison system than with the
appellant during the time that he was being held.
7. It was not disputed that the
incident began, so far as Mr Danielson was concerned, with
him being tied up by the appellant, initially, as it were,
to himself, and then later to a chair. The appellant had a
knife which was secured in some way to the end of a snooker
cue, so that the effect was of a spear. There was no
suggestion that he had used that sphere in order to inflict
any injury on Mr Danielson, but no doubt it had an effect
upon his state of mind.
8. It was not disputed that,
throughout the 44 hours, Mr Danielson had a rope round his
neck, the other end of which was either in the appellant's
hand or tied to his belt. It was accepted by the
prosecution that a woman prison visitor to Hull had concerns
about the conditions in which the appellant was being held
and she had written to the prison medical officer itemising
those concerns. These included the quality of the
ventilation, damp, heating, the concrete bed on which the
appellant slept, the poverty of his diet, the effects of
inactivity on his health, the lack of intellectual
stimulation which he was experiencing, and the effects upon
him of the isolation in which he was being held,
particularly stress.
9. The appellant, in evidence,
accepted, of course, that he was in lawful custody in the
prison at the time, and he accepted that he deserved to be
there, in view of what he had done in the past. He said
that when he was told that he was to be moved from Hull, he
was angry and upset. He had, in a way which he detailed
before the jury, been moved many, many times during the
period which he had been in prison. He spoke of the
psychological injury which he had in consequence suffered.
He said that he had been afraid about what might happen if
he was moved from Hull and, in particular, sent to Woodhill
Prison. He accepted that, apart from the occasions when Mr
Danielson was not tethered, Mr Danielson had been falsely
imprisoned and he accepted that he had damaged electrical
equipment in the course of the incident.
10. In his evidence to the jury he
described his previous convictions. He said that he had
been in prison for 26 years, during which he had been
released twice, the first time apparently for about 2
months, and the second for about 2 weeks. For 22 of those
26 years, he had served his sentence in solitary
confinement. He said he had been subjected to severe
intimidation and serious assaults by some prison officers,
particularly when, as very frequently happened, he was
transferred from one prison to another and was met by an
intimidating reception committee of prison officers. He
spoke of being kicked, punched and stamped on and of his
fingers having been broken. By reason of these matters, he
suffered from panic attacks, depression, anxiety and post
traumatic stress disorder. However, for the 2 years
immediately preceding this incident, he had been in Hull
where his living conditions had improved, as had his
dignity.
11. To his talents as an artist we
shall return later. But he made a drawing which attracted
adverse comment from Mr Danielson. Furthermore, a few days
before 1st February, the appellant's grandmother had died
and he had not been permitted to attend her funeral. He
had, however, welcomed being told that he was going to stay,
perhaps for 5 years, in Hull because he knew how much his
quality of life had improved there. Just by way of example,
he had been permitted out of solitary confinement and had
made a friend with whom he had had Christmas dinner.
12. There was evidence from a prison
officer that Durham, to where it was contemplated the
appellant would be moved, eventually, would offer a better
regime. But it would not be open for a month or so after he
left Hull and, in the meantime, the appellant would go to
Woodhill, according to the officer, for four or five weeks.
As the appellant himself accepts, during his previous spell
at Woodhill, he had been a success. The officer gave
evidence that, had he gone to Woodhill, he would not
necessarily have been in solitary confinement.
13. It was common ground that the
appellant, when told the news about the move was given the
opportunity to choose to which segregation unit prison he
wished to be transferred, though the appellant himself was
not much impressed by the opportunity of making that
choice. He said he was upset by the decision. He was
fearful for his life, if he was moved from Hull. He was
afraid, because he did not want to return to solitary
confinement.
14. So far as the damage offence was
concerned, he used the contents of a washing machine to
cover the floor with water, then tore the plug from the wall
and put the electric wires into the water because he wanted
to die. He said he had been driven mad by what he had been
told.
15. He said he had looked after Mr
Danielson, leaving aside the aspects of rope and spear to
which we have referred, by giving him blankets, cups of tea
and pineapple chunks and he had not hurt him.
16. He said that he had not known, at
the time of the incident, that he would be transferred to
Woodhill though in fact it was to Woodhill that he went
after these events.
17. So far as Durham was concerned,
he said that was too far for his mother to travel to visit
him. He was particularly fearful of Woodhill because of
what he had been told by a man called Quinn who had been
incarcerated in solitary confinement there. He accepted,
when he was cross-examined, that he had probably tied up Mr
Danielson and then tied him to a chair and he believed he
had made the spear using a knife. He referred to the
skipping rope around Mr Danielson's neck as being "loosely
tied" and Mr Danielson had then followed the appellant
everywhere. He was upset with Mr Danielson because of the
criticism which Mr Danielson had made of his drawing, which
had received praise from others. His fears about going into
solitary confinement were made worse because he felt that he
had been lied to in first being told that he would stay at
Hull for some years and then, not long after, being told he
would have to move.
18. The learned judge gave a ruling,
in short terms of which we have a transcript, that he was
not going to leave to the jury the defence of duress. It is
that ruling which is at the heart of this appeal. The
grounds assert that the judge confused duress with duress of
circumstances and was wrong in withdrawing the defence from
the jury's consideration. The judge had misdirected himself
in saying that duress could not apply "because he was never
threatened with violence." The judge ought to have given
consideration to the appellant's psychiatric history when
deciding whether or not to leave duress to the jury and,
bearing in mind that the defendant was representing himself,
that was an additional reason for the defence to be left to
the jury.
19. The defendant's case was that he
was acting to avoid consequences which he could not
otherwise have avoided and which, if they followed, would
have resulted in the infliction on him of very serious harm.
20. For the appellant, Mr Whitehouse
QC submitted that it was the appellant's fear of torture and
harm of the gravest kind in other prisons which led him to
act as he did on 1st and 2nd February. He had, it is
submitted, no alternative avenue open to him, because for
him to complain was useless and would merely lead to further
maltreatment. His fear was genuine, as the judge appeared
to accept and, it is submitted, was reasonable. It was not
suggested that the history of brutality to the appellant in
prison was untrue. There is now available psychiatric
evidence from Dr Johnson, as well as that formerly available
from Dr Gosh. Although they are not agreed as to the
diagnosis of the appellant's mental state, they are agreed
that the appellant's condition has been aggravated by the
sensory deprivation which has occurred from solitary
confinement over many years. The appellant's behaviour, in
taking Mr Danielson hostage, it is submitted, was not out of
proportion to what he feared. The judge, it is said, having
confused duress and duress of circumstances, was wrong not
to leave the defence to the jury.
21. On behalf of the Crown, Mr
Harrison QC, who did not appear at trial, submitted that it
was the judge's duty to scrutinise the evidence and there
was no objective evidence of operative threat or danger to
the appellant on 1st and 2nd February. The appellant knew
he was not to be moved for disciplinary reasons, because he
was being treated in the same way as the other category A
inmates. There was no evidence, submitted Mr Harrison, of
any nexus between the danger to the defendant from which he
sought to escape and his hostage taking, which would not
free him from the threat of leaving Hull.
22. Furthermore, the judge was
entitled to conclude, submitted Mr Harrison, that there was
no evidence that the appellant's behaviour was reasonably
proportionate to the perceived threat. The judge was right
to conclude that a lawful move, from one prison to another,
could not give rise to duress.
23. On behalf of the appellant, it is
apparent that every evidential and legal avenue has been
exhaustively explored by those now and previously acting for
him on this appeal. The abiding difficulty with his case is
that one of the recurrent themes of the speeches in the
House of Lords and the judgments of this Court, in relation
to duress of whatever kind, is that an essential element of
the defence is that there must have been, objectively
assessed, an imminent danger of the death of, or serious
harm to the defendant if he did not act as he did. This
need for objective assessment is expressed in the
authorities in a variety of ways. For example, in DPP v
Lynch 61 Cr App R 8, Lord Morris at 10 referred to "the
standards of honest reasonable men" and to someone being
"really threatened" lest duress "be allowed to be the easy
answer of those who can devise no other explanation of their
conduct." In R v Graham 74 Cr App R 235 at 241, Lord
Lane CJ said:
"As a matter of public policy, it seems
to us essential to limit the defence of duress by means of
an objective criterion formulated in terms of
reasonableness."
In R v Cole, Court of Appeal
(Criminal Division) transcript 14th February 1994, Simon
Brown LJ, as he then was said:
"We believe duress should be rigidly
confined to its established present limits."
The need for evidence of objective
imminent danger and the insufficiency of a defendant's
thought processes and emotions as a basis for duress, is
illustrated by R v Rodger & Rose [1998] 1 Cr App R
143. The defendants were convicted of breaking prison. They
were serving life for murder and were told that their
tariffs were being increased by the Home Secretary. They
became angry and depressed and said that, if they had not
escaped, they would have committed suicide. Psychiatric
evidence was called in their support. This Court held that
the trial judge had rightly ruled that duress by necessity
was not open to them.
24. In R v Martin 88 Cr App R
343, Simon Brown J, giving the judgment of a Court in which
the then Lord Chief Justice, Lord Lane presided said this at
page 345:
"The principles may be summarised thus.
First, English law does, in extreme circumstances, recognise
a defence of necessity. Most commonly this defence arises
as duress, that is pressure upon the accused's will from the
wrongful threats or violence of another. Equally, however,
it can arise from other objective dangers threatening the
accused or others. Arising thus it is conveniently called
'duress of circumstances'.
Secondly, the defence is available only
if, from an objective standpoint, the accused can be said to
be acting reasonably and proportionately in order to avoid a
threat of death or serious injury.
Thirdly, assuming the defence to be open
to the accused on his account of the facts, the issue should
be left to the jury, who should be directed to determine
these two questions: first, was the accused, or may he have
been, impelled to act as he did because, as a result of what
he reasonably believed to be the situation, he had good
cause to fear that otherwise death or serious physical
injury would result? Second, if so, may a sober person of
reasonable firmness, sharing the characteristics of the
accused, have responded to that situation by acting as the
accused acted? If the answer to both those questions was
yes, then the jury would acquit: the defence of necessity
would have been established."
Despite certain reservations about this
passage expressed by Simon Brown LJ himself in the case of
Cole to which we have already referred, the passage
was subsequently approved by this Court in R v Abdul
Hussein & Ors [1999] Crim LR 570 (Court of Appeal
(Criminal Division) 17th December 1998) and also in R v
Shaylor [2001] EWCA Crim 1977. It is common ground
before us, between Mr Whitehouse and Mr Harrison that, for
present purposes, that passage in the judgment in Martin
accurately states the law.
25. In the present case there was
evidence from the defendant, which was unchallenged, that he
was genuinely fearful that, if he were moved from Hull, he
would be subjected to solitary confinement and, on transfer
or thereafter, be at risk of death or serious injury. But
there was no evidence that, when he acted as he did on 1st
and 2nd February, there was, objectively, any imminent
danger arising to him from the contemplated lawful move of
the Hull category A wing prisoners. The judge would also,
as it seems to us, have been entitled to conclude that there
was no evidence of a nexus whereby the duress relied on by
the defendant impelled him to act as he did. The tethered
imprisonment of Mr Danielson for 44 hours would not have
averted transfer to another prison for non disciplinary
reasons, and might well have ensured it for disciplinary
reasons. The judge could also have concluded that no
reasonable jury could find that such conduct by the
defendant was a reasonably proportionate response to the
prospect of transfer.
26. Accordingly, in our view, the
judge was right to conclude that there was no evidence for
the jury's consideration capable of establishing duress.
27. The two reasons he gave in
summing-up for that conclusion were not felicitously
expressed. As the Full Court, when granting leave,
recognised, the first reason that "he was never threatened
with violence" was too narrow because, although threats are
requisite for some forms of duress, other events may, as we
have said, give rise to necessity or duress of
circumstances. The second reason he gave was "you may think
the Crown has proved that what the prison service was doing
was lawful because the Crown have to prove that what Mr
Bronson did was unlawful. It is not for him to prove that
it was lawful."
28. This passage, in isolation, is
somewhat confusing and elides consideration of the burden of
proof with the lawfulness of moving the appellant. But, as
appears from the immediately following passage in the
summing-up, the judge's second reason in reality was that
the appellant was lawfully in custody and was being moved
lawfully. The fact that this might be unfair, and that the
appellant was unhappy, resentful or frustrated, did not make
the taking of the hostage potentially lawful.
29. Accordingly, although the judge's
explanation of his decision in summing-up to the jury was
not as clear and accurate as it could have been, his
decision to withdraw duress as a defence was correct. His
consequential direction to the jury that, if they were sure
the element of the offences were made out, they had no
alternative but to convict, is, in our judgment,
unassailable, whether by reference to R v Kelleher
[2003] EWCA Crim 2846 or otherwise. Accordingly, the
verdicts of the jury were safe and the appeal against
conviction is dismissed.
30. As to sentence, Mr Whitehouse
stressed that very little violence was used in this false
imprisonment, which ended peacefully, with voluntary
surrender. The appellant was acquitted of making a threat
to kill and of assault occasioning actual bodily harm. It
was not necessarily an offence of violence, enabling the
court to pass a longer than commensurate sentence under
section 2(2)(b) of the Criminal Justice Act 1991, which was
then applicable. But he accepted that, as R v Cochrane
15 Cr App R(S) 708, illustrates, conduct likely to lead to
physical injury, whether intended or not, is sufficient to
make an offence a violent one.
31. Mr Whitehouse further submitted
that, taking into account, first, the psychiatric evidence
available from Dr Kennedy that, at time, the appellant was
suffering from PTSD, secondly, the evidence now available
from Dr Johnson that the appellant needs a target to aim for
and an indeterminate sentence creates stress, and, thirdly,
Dr Gosh's evidence that, when well managed, the appellant is
a good prisoner, a life sentence was not necessary.
32. Mr Whitehouse also relied on a
considerable number of character references about the
appellant, which we have read. Some of them paint a dismal,
indeed horrifying picture of conditions in some solitary
confinement units. All of them speak favourably of the
appellant, as an intelligent, honourable and, in many ways,
remarkable man. In particular, he is a talented artist,
who, by his skill exercised in prison, has contributed to
the raising of thousands of pounds for a variety of
charitable causes.
33. Mr Whitehouse called before us
the appellant's wife, to whom he has been married for 3
years and who was an apparently impressive witness. She
described how she met the appellant, his close relationship
with her 10 year old daughter by a previous relationship and
the changes which she had seen in the appellant in the last
4 years. She stressed the appellant's sense of
responsibility to her and to her daughter and she gave
evidence, confirmed by Dr Johnson's reports, that the
appellant has matured. The appellant himself made a
statement to this Court, from the dock, expressing sorrow
for what he had done, emphasising that he is now a different
person, who has changed drastically and that all he wants to
do now is to go home and live a normal life. We take all of
those matters into account.
34. However, the crucial question
which we have to address is whether the trial judge was
entitled to reach the conclusion, expressed when he passed
sentence, that the appellant was dangerous and
unpredictable, particularly when upset and angry, and that
his instability meant that he would continue to be a danger
in the future. In that respect, it is necessary to refer to
some of the appellant's previous convictions. It is right,
as he emphasised at his trial, that he has never killed
anyone and he has never been charged with either murder or
manslaughter. In 1974, for two offences of robbery,
aggravated burglary, assault with intent to rob and firearms
offences, he was sentenced to 7 years' imprisonment, a
consecutive sentence of 9 months was imposed the following
year for wounding and, in 1978, a hospital order was made,
with a restriction, for wounding with intent. In 1985, he
was sentenced to 3 years' imprisonment for unlawful wounding
and, in 1988, to 7 years for robbery. In 1993, there was an
offence of causing grievous bodily harm and, later that
year, he was sentenced to 8 years for firearms offences. Of
particular significance in the present context, it is to be
noted that, in 1994, he was sentenced to a total of 7 years'
imprisonment for two offences of false imprisonment, with
concurrent sentences for threats to kill and assault
occasioning actual bodily harm. In 1997, for an offence of
blackmail and three offences of threats to kill, he was
sentenced to 7 years' imprisonment reduced, on appeal to
this Court, to 5 years' imprisonment.
35. In our judgment, in the light of
these matters the trial judge was entitled to express the
view he did and to impose a discretionary life sentence.
Accordingly, we refuse leave to appeal against sentence.
36. But it is of importance that we
add this: because of the life sentence properly imposed, as
we have held, the date at which the appellant is fit for
release will now be a matter for the Parole Board. Although
the material before us, in the form of psychiatric reports,
character references and the evidence from the appellant's
wife, may afford an incomplete picture, it does suggest that
the appellant, in the light of his increasing age, maturity
and marriage, may now be a rather different person from the
one sentenced by the trial judge. It may also be of
significance that, until the incident giving rise to this
appeal, he had clearly, for some 2 years, been making very
good process in Hull Prison. Throughout this appeal he has
behaved calmly and with dignity. The proper assessment of
these and other relevant matters is not for us but for the
Parole Board.
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