2006

IN THE APPLICATION TO THE CRIMINAL CASES REVIEW COMMISSION BETWEEN:

CHARLES BRONSON

Proposed Applicant

-v
 

REGINA

Proposed Respondent

ADVICE

1. On 17th February 2000, following a trial before His Honour Judge Moss and a jury sitting at the Crown Court at Luton, Mr Bronson was convicted of false imprisonment (count 1 on the indictment) and criminal damage (count 4 on the indictment). HHJ Moss had ordered not guilty verdicts on counts 2 and 3 (offences of threats to kill and assault occasioning actual bodily harm) following the close of the prosecution case.

2. Mr Bronson was sentenced to life imprisonment on count 1 with a specified period of 3 years (pursuant to section 28, Crime Sentences Act 1997). No separate penalty was passed in respect of count 4.

3. Following conviction Mr Bronson appealed to the Court of Appeal on the basis that his convictions were unsafe and that his sentence was manifestly excessive. The appeal in both respects was turned down. For the purpose of this Advice it is the convictions and the refusal to overturn the convictions which are under scrutiny.

4. The issue on appeal related to questions of (i) whether HHJ Moss was right to withdraw the defence of duress from the jury; (ii) whether HHJ Moss was right to have refused Mr Bronson's request to call a number of defence witnesses; and (iii) whether, in view of the fact that a legal aid certificate was in place, it was right that Mr Bronson represent himself at trial (he having dispensed with the services of his Counsel, although not his solicitors, shortly prior to the commencement of the trial).

5. Whilst the three issues above were raised in the grounds of appeal the appeal itself primarily centred on the duress aspect. Mr Bronson accepted that he may have falsely imprisoned the complainant, John Danielson, and caused criminal damage, but explained that he was compelled to do so owing to the duress of circumstances under which he was placed. Mr Bronson gave evidence as to those circumstances. He sought to call evidence from a number of witnesses to establish the circumstances which he had faced in his numerous years in prison and following his move to HMP Woodhill after the date of the alleged offence. He also sought to call evidence from experts to prove the mental and physical injuries he had suffered whilst in prison. HHJ Moss largely refused Mr Bronson's requests to call that evidence.

6. Notwithstanding the defence advanced by Mr Bronson, the learned Judge stated: "however you felt and what you believed or anticipated might happen, that is not the same as a threat and therefore the defence of duress is not available to you" (Transcript Vol III, Thursday 17th February 2000). The judge, therefore, withdrew the defence from the jury (Summing-up, page 9, lines 3 - 10, and line 16) who had no other option but to convict Mr Bronson.

7. Final judgement on the appeal was handed down on 2nd April 2004. As said above the Court rejected the appeal. It is not quite clear to us whether an application was ever made to petition the House of Lords following the rejection of the appeal. Certainly the transcript of the judgement makes no reference to such an application having been made. We have seen no proper documentation to show that the application was made, although there is some suggestion from the correspondence we have seen that an oral application may have been made.

8. Mr Bronson has requested that those instructing us make an application to the Criminal Cases Review Commission to have his conviction reviewed with a view to the same being referred to the Court of Appeal. In our view such an application is meritorious and ought to be pursued on the bases that he wrongly had his defence of duress withdrawn from the jury, was wrongly prevented from calling witnesses in support of that defence and on the basis that new evidence has emerged in support of his Defence. The procedural requirements for pursuing that application have been satisfied by virtue of Mr Bronson having been granted leave to appeal to the Court of Appeal, and having had his case considered and rejected by the Full Court.

Summary/Statement of Facts

Background to the Incident

9. On 8th October 1997 before His Honour Judge Watling Mr Bronson fell to be sentenced for a series of offences to which he had pleaded guilty. The offences were one count of blackmail and three counts of threats to kill. Three counts of false imprisonment were left to lie on the file. There was some dispute as to whether those pleas were entered voluntarily (although it is not necessary to consider that matter for the purpose of this Advice). At the time of the alleged commission of those offences Mr Bronson was in the process of serving an eight year sentence of imprisonment for different offences.

10. Mr Bronson was sentenced to seven years imprisonment for the offence of blackmail, and seven years' imprisonment for each of the threat to kill counts. Each of the sentences was ordered to run concurrently to one another, although consecutively to the eight year sentence of imprisonment which he was already serving. On 2nd October 1998, the Court of Appeal reduced the seven year sentence to one of five years.

11. It was during the currency of Mr Bronson serving the above mentioned sentences that the offences for which he faced trial at the Crown Court at Luton are said to have been committed.

12. At the time of the alleged offence (1st February 1999) Mr Bronson was serving his prison sentence at Hull Prison in a non-segregation unit. It is fair to say that Mr Bronson has spent a large part of his life in prison and much of that in solitary confinement. During the trial for the instant offences Mr Bronson pointed out to the jury that he had first been imprisoned in 1974 when he was just 21 years of age and, save for approximately three months, had remained there for a further 26 years.

13. Whilst Mr Bronson had, in the past, experienced many difficulties while in prison, and indeed had spent twenty two years out of twenty six years' imprisonment in solitary confinement (which the Crown did not dispute at trial) in most of the high security prisons in existence in England, he was informed by Mr Golds from the prison service headquarters that he had been behaving well and improving and would, therefore, be staying at Hull prison. Unfortunately, this did not turn out to be so. Approximately three to four weeks later Mr Bronson was informed by Mr Golds that the Unit was to close. Mr Bronson was informed that he, along with four other prisoners, were to be moved.

14. Whilst at HMP Hull, a specialist unit, Mr Bronson cooperated fully with the prison service and had not had any sort of trouble for a two year period. He worked extremely hard and he and the staff showed each other respect. It appears to have been one of the limited periods of Mr Bronson's life in prison when he felt he was [beginning to be] treated humanely and with any respect, and actually considered that his quality of life was "okay". For the first time in a substantial period he had been allowed to associate with other prisoners and been given access to limited facilities. He had cooked himself and a fellow inmate, Fred Lowe, a Christmas Dinner (1998). That was the first Christmas that he had been allowed to share with another human being in "some years".

15. The prison service suggested that Mr Bronson was offered a "choice" of the prison that he could move to following the closure of Hull. We understand that this was due to be for a "short time" until Mr Bronson could be sent to HMP Durham. Mr Bronson pointed out during his trial that the prison services' idea of a short time did not necessarily equate with what one would ordinarily consider to be a short time. Furthermore, Mr Bronson pointed out that this was really no choice at all. He was being asked to choose which of a number of evils he wanted to move to; as a move from HMP Hull was surely going to result in his return to segregation, and solitary confinement. Mr Bronson explained that he thought he was going back to a "hole". He had heard from Fred Lowe that he (Lowe) had been at HMP Woodhill and had spent time there in solitary confinement. Fred Lowe explained to Mr Bronson that whilst at HMP Woodhill he had had to suck air through the vent of a window that did not open "like some dirty stinking animal". Whilst Mr Bronson had in the past spent time in Woodhill without any difficulty Fred Lowe's account had made Mr Bronson fearful of a return there.

16. Although Mr Bronson did not know which prison he was likely to return to his numerous years in solitary confinement, coupled with the physical and mental abuse he had suffered, and the account relayed by Fred Lowe had made Mr Bronson consider that a return to solitary confinement in a different prison would result in him being subject to extreme (physical and psychological) injury and/or death.

17. During giving evidence he recounted how on a previous occasion in Hull he had been restrained in a body belt for two days (to his knowledge the longest anyone had ever been so restrained). He urinated on to his body, and was kicked and punched senseless. The Crown did not challenge this. He recounted: "I am isolated, and I am beaten up. In many of these jails I am beaten up, smashed to pieces, broken fingers, heads, everything" (Cross-Examination, page 15, lines 2 to 4). He explained that he had been "certified mad while in prison", explaining that he had no such diagnosis prior to him going into prison (and presumably, solitary confinement). He explained that "The prison drove me mad, brutally beat me, degraded me, humiliated me. My mother used to turn up at a prison to visit me and that same day they moved me. She would be stuck in a prison and I would not even be there - my mother. I would be going out in the van and my mother would be walking through the gate" (CrossExamination, page 14, line 1 to 7). The Crown never challenged any of these assertions during cross-examination.

18. Mr Bronson's evidence reveals that he moved from prison to prison on approximately 138 occasions. He makes it clear that in some years he would move up to 16 times (Cross-Examination, page 20, line 14 to 15). Mr Bronson explained that he was subjected to severe intimidation and serious assaults by some prison officers particularly when he was transferred from one prison to another where he was often met by an intimidating reception committee of prison officers.

19. Mr Bronson stated in response to being told that he had a choice of which prison to move to: "So I am in a catch 22 position, I have got to pack my little box and go back to this and hope and pray that I will get a cell with a window or something and hope I am not brutalised and tortured and urinated on. I cannot defend myself. Just think about all this. Think about it. So my head went and I have done what I have done. I am not disputing that. The prosecution evidence. But I was frightened for my life". (Cross-Examination, page 22, line 20 to 27).

20. In addition to the evidence that Mr Bronson provided regarding the psychological and physical injuries he had suffered, the results of one of the incidents of violence he had suffered was seen by his then solicitor, Margaret Morrissey on 4th October 1994. She noted that Mr Bronson had suffered a bruised red and swollen cheekbone; bruised left eyelid with a small mark under the right side of the eye; bruised right eye under the lid towards the nose; lump and bruising behind the right eye; various cuts on and inside his lip; graze to the right side of his chin; swollen left temple; swollen and bruised right middle finger; the nail of his right finger had been broken off and was black and red in colour although green around the edges; swelling, discolouration and
,
bruising on his left instep; right instep swollen and bruised; his big toe nail was coming loose and he had a swollen right ankle. A Polaroid taken by a prison officer showed a bruise on the underside of Mr Bronson's right arm about 5 inches in diameter; bruising on the upper right buttock about 1½ inches in diameter; and a large area of bruising about 4 inches by 2 inches on the left buttock.

Prosecution Case regarding the Incident

21. The principal complainant, John Philip Danielson, was employed by Kingston Upon Hull City Council as a Further Education Officer. He was based at Hull Prison as an Education Manager - a position which he had held since 1st May 1998. Prior to the incident Mr Danielson criticised a cartoon which Mr Bronson had been responsible for drawing. Sometime following that, the Crown alleged that Mr Bronson has armed himself with knives from the inmates' kitchen, and had tied a knife to a snooker cue, thereby turning it into a spear. The Crown alleged that Mr Bronson had taken the complainant prisoner and kept him in his (Mr Bronson's) cell against his will from the 1st to 3rd February 2000. It was said that Mr Bronson had tied up the complainant with rope.

Defence Case

22. Mr Bronson represented himself at trial. He explained that he was settled at Hull where he had been behaving and improving and was settled and content. He had been told that he would be staying there. He was subsequently told that the plans had been changed, the Unit was to be closed and that he was to be sent to another prison which he thought might be HMP Woodhill.

23. He feared the regimes of other prisons, particularly, Woodhill, and how he might be treated if he were to be moved. He was fearful for its effects, mental and physical on him. He was afraid of, and did not want to return to, solitary confinement.

24. He explained to some extent the conditions of the prisons in which he had been both prior to and after the alleged incident. Indeed, it was accepted by the Crown that a prison visitor to Hull had concerns about the conditions in which Mr Bronson was being held and had written to the prison medical officer itemising those concerns. Those concerns included references to the quality of the ventilation, damp, heating, the concrete bed on which Mr Bronson was required to sleep, the poverty of his diet, the effects of inactivity on his health, the lack of intellectual simulation which he was experiencing and the effects upon him of the isolation in which he was being held, particularly stress.

25. Mr Bronson's case was that the threat of the change of prisons (to possibly worse conditions than Hull as we understand the position) and what might happen to him there, made him fear for his life and it was to avert that that he took Mr Danielson hostage; he was compelled to do so owing to the duress of circumstances placed upon him. Mr Bronson gave evidence detailing the matters which compelled him to act as he did. Mr Bronson accepted the majority of the allegations made by Mr Danielson, although stated that while Mr Danielson may not have been free to leave initially there were times after that when he could have done so. He explained that the rope was loosely placed on Mr Danielson.

26. Mr Bronson explained that he had fed Mr Danielson, gave him his tinned pineapples (which Mr Bronson would not normally give to anyone), and provided him with tea. Mr Bronson referred to a video of the incident (which we have not seen) showing Mr Danielson laughing on the same

27. In cross-examination Mr Bronson stated that he may have caused criminal damage. In discussing the damage caused Mr Bronson explained that he had 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 had been driven mad by what he had been told. Death, it seems, was a preferable option to moving prison insofar as Mr Bronson was concerned.

28. Following Mr Bronson completing his evidence His Honour Judge Moss ruled that notwithstanding how Mr Bronson felt and what he believed or anticipated might happen that he (the learned Judge) did not consider that to be the same as a threat. The Judge withdrew the defence of duress from the jury. HHJ Moss stated that provided the jury were satisfied that the ingredients for the offences of false imprisonment and criminal damage were made out then the proper verdict would be one of guilty on each of the counts left for the jury's consideration.

29. Mr Bronson had, of course, conceded in evidence that the necessary ingredients of the offences were made out. That is, of course, a necessary requisite for one to be able to rely on the defence of duress (commission of an offence because of the duress of circumstances). In withdrawing the defence of duress from the jury the learned Judge had, in effect, directed that they convict Mr Bronson. The jury had no alternative in the circumstances (regardless of their personal views as to the evidence) but to convict Mr Bronson.

30. It is this issue, in addition to HHJ Moss' refusal to allow Mr Bronson to call a number of witnesses to support his contention that he was acting under duress, with which this Advice is concerned.

Law on Duress

31. In Lynch v DPP for Northern Ireland [1975J AC 653, HL, Lord Simon at page 686 stated (quoted with approval by Lord Mackay in Howe [1987] AC 417, HL):

"[I]t is convenient to have a working definition of duress-even though it is actually an extremely vague and elusive juristic concept. I take it for present purposes to denote such [well grounded] fear, produced by threats, of death or grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as overbears the wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it. I am quite uncertain whether the words which I have put in square brackets should be included in any such definition. It is arguable that the test should be purely subjective, and that it is contrary to principle to require the fear to be a reasonable one. Moreover, I have assumed, on the basis of Hudson that threat of future injury may suffice, although Stephen, Digest of the Criminal Law, Art 10 is to the contrary. Then the law leaves it also quite uncertain whether the fear induced by threats must be of death or grievous bodily harm, or whether loss of liberty suffices: cases of duress in the law of contract suggest that duress may extend to unjustified imprisonment; but the criminal law returns no clear answer. It also leaves entirely unanswered whether, to constitute such a general criminal defence, the threat must be of harm to the person required to perform the act, or extends to the immediate family of the law actor (and how immediate?), or to any person. Such questions are not academic, in these days when hostages are so frequently seized. Is it worse to have a pistol thrust into your back and a grenade into your hand, or to have your child (or a neighbour's child) seized by terrorists and held at peril until you have placed in a public building a parcel which you believe to contain a bomb?"

Lord Simon further said that where so little is clear: "this at least seems to be established that the type of threat which affords a defence must be one of human physical harm (including possibly, imprisonment), so that threat of injury to property is not enough".

32. Whilst that appears to be the general position in relation to duress, duress of circumstances (sometimes referred to as necessity) has also been considered (sometimes) separately in a number of cases. The position is largely said to be set out in Martin 88 Cr App R 343 (approved in Abdul Hussein & Others [1999] Crim LR 570, CA and Shaylor [2001] EWCA Crim 1977) in which Simon Brown J stated 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."

33. Although the case of Martin refers to "reasonableness" there is criticism as to whether or not this is a requirement of the defence (see paragraph 17-130, page 1719 to 1720 of the 2005 edition of Archbold, and the case of Lynch v DPP for Northern Ireland[1975]AC 653 referred to above).

34. Of importance, however, is that it is not necessary, in considering whether there is sufficient evidence to support the defence of duress, to establish that there was a threat in fact, only something that an accused reasonably believed to be a threat: R v S and Others (2004)1 CrApp R 14.

35. The relevant characteristics of a person (referred to in paragraph 32 above) that a court is required to consider when determining whether a person was acting under duress include factors which make a person less able to resist pressure than others to whom the factors do not apply. Youth, pregnancy, physical disability, recognised mental illness or psychiatric condition, such as post-traumatic stress disorder leading to learnt helplessness may all be relevant factors for the jury to consider in determining this (see Bowen [1996] 2 Cr App R 157, CA).

Application of the law

36. What is clear from the judgements quoted above is that, while the defence of duress is undoubtedly complicated in its application, it is a matter for the jury to determine whether an accused can avail him or herself of the defence. The jury are required to take into account a number of considerations including the factual circumstances that existed at the time and may have existed in the future, the characteristics of an accused, and, importantly, the belief of the accused.

37. Indeed, in Martin it is made clear that the issue should be left to the jury (seethe third paragraph of Simon Brown J's speech as quoted above). Any matters which support and/or explain the factual circumstances which existed at the time and the characteristics of the accused are clearly relevant to the issue of duress. The directions of law to be given to a jury, as enunciated in Martin, make that clear. Therefore, any witnesses who can give evidence of those matters ought to be allowed to testify to the same. Equally, in view of R v S and Others, any matters which support the belief of an accused also ought to be permitted to be given in evidence.

38. Once the jury have heard the totality of the relevant evidence it is for them to decide whether the defence is made out. As is said on a regular basis up and down the Country in the Crown Court, matters of law are for the Judge and matters of facts are for the jury alone. The Judge is required to give the appropriate direction of law as to duress and it is for the jury to apply that direction to the facts as they find them. It is not for a Judge to consider the direction of law that he or she will give and decide whether in his or her judgement an accused can avail him or herself of the defence by reference to the evidence that has been given. To do so, would be for the Judge to determine the facts and circumvent the jury's function.

39. This position has been made all the more clear in Wang [20051 UKHL 9; (2005) 2 Cr App R 8 (which had not been decided at the time of Mr Bronson's appeal) in which the Court of Appeal certified a question of law of general importance for the Committee,of the House of Lords to consider in the following terms:

"In what circumstances, if any, is a judge entitled to direct a jury to return a verdict of guilty?"

40. The House of Lords heard arguments on voluminous historical material but primarily focused their attention on the criminal jury in its modern setting considering the law over the last century. Having done so the House of Lords determined that there were "no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty". The House of Lords in considering the law noted that to have been the position over the years.

41. The learned Judge in withdrawing Mr Bronson's defence of duress, therefore, erred in law and in fact. The Court of Appeal wrongly failed to rectify this failure by upholding the conviction. It is clear that it was a matter for the jury to determine whether the defence of duress was made out and whether the Crown's case was proved.

42. Mr Bronson was denied this fundamental right. There is no way of knowing what the jury's conclusion would have been in those circumstances had they been properly directed. The conviction is, therefore, unsafe.

Does the Human Rights Act Apply?

43. Before considering whether Mr Bronson is entitled to rely on his rights under the European Convention of Human Rights its applicability needs to be considered. There has been a great deal of dispute as to whether an Appellant during domestic proceedings is permitted to rely on his Convention rights on appeal in order to challenge a decision of a trial court made prior to 2nd October 2000; to that extent the House of Lords in Lambert [2002] 2 AC 545 stated that it could not be.

44. If that be right, since Mr Bronson's trial took place in February 2000, he would be unable to rely on his Convention rights during his appeal. Indeed, in view of the decision of Lambert, which was published after Mr Bronson's oral application for leave to appeal but before the appeal hearing, Mr Bronson's then legal team (understandably, in view of the initial impact and decision of Lambert) abandoned the grounds that Mr Bronson's trial infringed the provisions of Article 6, HRA 1998 as has been contained in the initial skeleton argument (and upon which they had been given leave) prior to the full appeal hearing.

45. Rather oddly, however, the existence of section 22(4) and section 6 of the Human Rights Act 1998 meant that the provisions of Article 6 did apply to Mr Bronson's actual trial as the proceedings were brought by a public authority which was under a duty to respect the provisions of the European Convention of Human Rights at the time of the trial. If the decision in Lambert is right the trial process would have to comply with Article 6, but if it did not do so, an accused would be left without the right to appeal on the basis that his trial was Article 6 unfair.

46. Unsurprisingly, given the above anomaly, the House of Lords has since reconsidered the decision in Lambert. In Kansal (No 2) [2002] 2 AC 69, the House of Lords held by a majority that Lambert was wrongly decided on that point (although for reasons of judicial certainly stated that Lambert should be followed in that case and/or until it is reheard by the Court which determined Lambert).

47. In our view, it is arguable that the decision in Lambert is incorrectly decided and we are of the view that it is arguable that the Appeal Court ought to have considered Mr Bronson's Convention rights. Otherwise the effect of the judgement in Lambert would be to invalidate the requirement of section 22(4) of the Human Rights Act by denying an accused the opportunity to have scrutinised a trial which took place prior to the implementation of the Human Rights Act and which in accordance with section 22(4) was required to take account of the Convention Rights but which did not do so by refusing to consider the issue on appeal.

48. We are, therefore, of the view that it is arguable that Mr Bronson ought to be able to rely on his Convention Rights before a domestic court (if appropriate), and almost certainly would be able to rely on those rights on an application to the European Court of Human Rights.

Article 6, European Convention on Human Rights

49. By virtue of Article 6:

(1): "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... ... ....."

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights: ..................

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; .............."

50. In our view it is arguable that Mr Bronson's trial did not meet the minimum requirements set out in Article 6 and, therefore, was arguably unfair. However, that is not the end of the matter. The European Court of Human Rights in determining whether the proceedings as a whole were unfair (as this is the ultimate matter the Court will be concerned with) will have regard to the proceedings as a whole, including appellate proceedings, and may consider whether or not the appellate proceedings have rectified any defect which arose at the first hearing (see for example, Adolf v Austria, 4 EHRR 313, De Cubber v Belgium 7 EHRR 236, Edwards v UK, 15 EHRR 417).

Potential Violations of Article 6

51. It is, in our view, arguable that there have been a number of breaches of Article 6. These are set out below.

52. Pursuant to Article 6(1), Mr Bronson clearly had the right to have a determination of the criminal charges brought against him by an independent and impartial tribunal established by law. The tribunal established by law in respect of the offences for which he was charged was the Judge and jury. In accordance with domestic law it was the learned Judge's function to determine the law and for the jury to determine the facts, applying the law, in determining the criminal charges. The learned Judge's direction that the defence of duress be withdrawn from the jury usurped the jury's function and meant that the Judge rather than the jury, as required by domestic law, determined the charges. It was impermissible for the learned Judge to do so (see Wang [2005]). It is, therefore, arguable that the determination of the criminal charges was, therefore, not in accordance with the law (it not having been determined by the jury).

53. Furthermore, it is arguable that the unfairness was compounded in the Appellant proceedings. -The Appellant Court's attention appears to have been specifically referred to Kelleher [2003] EWCA Crim 2846. This is a case directly referred to in the case of Wang [2005] in which the House of Lords determined that a Judge could never withdraw a defence from the jury. In rejecting Mr Bronson's appeal the Appellant Court stated in reference to that case:

"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." (Paragraph 29 of the Judgement, dated 2nd April 2004).

54. This is clearly contrary to the position of the law as was at the time of their decision, as re-affirmed by Wang [2005] and, therefore, arguably Article 6 unfair.

55. The learned Judge in withdrawing the defence from the jury's determination must have presumed that the jury would convict Mr Bronson. In doing so, it is arguable that the Court failed to have regard for the presumption of innocence and thereby breached the requirement set out in Article 6(2) by presuming guilt as opposed to allowing the jury to determine that issue reminding them of the presumption of innocence. HHJ Moss' direction resulted in a mandatory requirement on the jury to presume that Mr Bronson was guilty regardless of their consideration and evaluation of the evidence.

56. We understand from reading the numerous lever arch files in this matter that there may have been some difficulty with Mr Bronson being able to call a witness (Mr Golds) whom the learned Judge obviously considered relevant. It appears that there was some difficulty with whether there were sufficient facilities/arrangements in place for Mr Bronson to be able to speak to Mr Golds. It appears that Mr Golds did not wish to speak to Mr Bronson directly in the cells (although it is not clear whether he would speak to Mr Bronson elsewhere). His Honour Judge Moss stated in response to that: "I cannot force the witness to speak to Mr Bronson nor would I dream of trying to. If he has a reluctance to speak to Mr Bronson then Mr Bronson is going to take his chance on calling him". (Trial Transcript (discussion in the absence of the jury), page 1, paragraphs 13 to 16).

57. Mr Bronson suggested that he be allowed to speak to Mr Golds in the visitor's section where a screen would be between the two, or alternatively, that his solicitor ought to be allowed to speak to the witness. We are unable to determine from the papers that we have seen whether arrangements were ever made. If Mr Bronson was denied reasonable opportunities to speak to Mr Golds or to have Mr Golds spoken to by his solicitor then there may be a possible argument to suggest that the rights set out in Article 6(2)(b) and (d) have been violated, particularly given that the conditions in which he sought to call witnesses differed significantly from that of the conditions that the Crown were operating under. However, without further detail it is not possible to determine this point at this stage.

58. The refusal of the learned Judge to allow Mr Bronson to call some or all of the witnesses that he required to establish the factual circumstances that existed at the time of the offence, and/or were likely to exist in the future should he be moved back to solitary confinement, coupled with the learned Judge withdrawing the defence of duress from the jury in our view, arguably, supports the contention that the trial process failed to ensure that the minimum rights set out in Article 6(2)(d) were respected. The argument is even stronger in respect of the medical/expert witnesses that Mr Bronson wished to call, particularly from Dr Kennedy (available at the time of his trial) showing that Mr Bronson was suffering from post-traumatic stress disorder (a factor the jury ought to have been asked to consider when determining whether duress was made out) and from Dr Ghosh showing that Mr Bronson's condition had been aggravated by sensory deprivation which had occurred from solitary confinement over many years. It appears that an abundance of medical evidence has come to light since the trial, particularly from Dr Bob Johnson, confirming the existence of medical injuries to Mr Bronson caused to him during his time in prison.

59. Dr Kennedy found Mr Bronson to be mentally unstable due to the combination of post-traumatic stress disorder and certain personality factors (see his report, dated 24th January 2000). Dr Ghosh found that Mr Bronson suffered from paranoid personality disorder noting Mr Bronson to suffer from a number of associated symptoms (see Dr Ghosh's report; dated 2nd September 1999). This, in our view, ought to have been evidence that was put before the jury as being relevant factors that the jury ought to have considered when determining the defence of duress, especially as they ought to have considered the relevant characteristics of Mr Bronson and the factual circumstances that existed at the time in determining whether the defence was made out.

60. This is made all the more apparent in the light of the learned Judge's summing up to the jury in which he stated:

"The defence, as I have said, is limited to those circumstances where the threat, and it has to be threat of death or serious injury, arises. There has been talk in this case of psychological injury by Mr Bronson Serious injury can include psychological injury but it .would be necessary for you to have heard expert evidence about that, or at least medical evidence before that could be shown to be the case. Mr Bronson tells you the situation that he believed to be then you are entitled to consider it but effectively psychological damage in this particular context again does not arise because of no other evidence that has been called to that effect." (Transcript of Summing up and verdict, page 7, para 25 to page 8, para 10".

61. Given that the learned Judge failed to allow Mr Bronson to call medical witnesses it must be unfair to then inform the jury to ignore whether there was/or be likely to be psychological injury as there had been no evidence called on the issue. Furthermore, in our view, this was a material misdirection insofar as the concept of duress involves the threat of serious injury or death. It did not need to be established that there was psychological injury; only that there was a threat of such injury and/or a belief that such an injury would occur (R v S and Others).

62. In so suggesting the learned Judge misdirected the jury and appears to have, at least, partly based his decision to withdraw the defence of duress on that basis. In doing so, it is arguable that he failed to respect the fair trial provisions. Furthermore, given that Mr Bronson had given evidence to the effect that he believed that he was likely to suffer such damage it is arguable that there was no need to call evidence in support of that at all, particularly in view of the fact that the Crown did not challenge that suggestion. It was uncontested evidence. In giving the direction which he did, it is arguable that the learned Judge failed to respect Mr Bronson's right to be presumed innocent.

63. In withdrawing the defence of duress for the jury's consideration and in not allowing the calling of witnesses to give relevant evidence it is arguable that Mr Bronson was denied a reasonable opportunity of presenting his case, and, therefore, placed at a substantial disadvantage in comparison with the Crown. If that be right, there is a good argument to contend that the trial process failed to respect the `equality of arms' principle as required generally by Article 6(1).

Conclusion

Since the Court of Appeal rejected Mr Bronson's appeal the law with regards to the withdrawing of defences from a jury has been clarified by the House of Lords in Wang [2005]. Had the Court which considered Mr Bronson's appeal had the advantage of seeing their Lordships' decision in Wang [2005] we are of the view that they would have allowed Mr Bronson's appeal. This clarification of the law, in our view, confirms that Mr Bronson's convictions are unsafe.