No: 9807230/Z2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Tuesday 25th May 1999
 
                    B E F O R E :

                 LORD JUSTICE BUXTON

                  MR JUSTICE HIDDEN
 
                         and
 
               THE RECORDER OF BRISTOL
                HIS HONOUR JUDGE DYER
      Sitting as a Judge in the Court of Appeal                   Criminal Division
             ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
 
                    R E G I N A

                       ‑ v ‑

               Patrick Nicholas HEATH
 
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HG
    Tel No: 0171 421 4040   Fax No: 0171 831 8838
         (Official Shorthand Writers to the Court)
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
 
MR M MATHER‑LEES appeared on behalf of the Applicant
 
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
                      JUDGMENT
             (As approved by the Court)
                   CROWN COPYRIGHT
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑

25th May 1999
 
LORD JUSTICE BUXTON: This is a renewed application for leave to appeal by Mr Patrick Heath who was convicted in the Crown Court in Bristol of possessing a class B drug with intent to supply.  The only point in issue before us is the question of whether on the evidence that was before the court the defence of duress was available to Mr Heath.
      When counsel raised that matter with the judge at the end of the evidence it appears that the judge decided that she herself should rule on whether the defence was or was not available.  Not, as we understand it, on the question of whether there was any prima facie evidence of duress, but rather whether the case fell within that rather limited band of cases which decide, putting it broadly, that where a person has exposed himself to the danger of duress or, as Lord Lowrie put it in the case of Fitzpatrick, has voluntarily put himself in a position where he is likely to be subject to compulsion, the defence is not available to him. Whether that was clearly understood to be the issue when Mr Mather‑Lees raised this matter with the learned judge is not entirely clear, but the learned judge took it upon herself to rule that that situation arose in this  case and that, therefore, the defence of duress could not be ventilated before the jury.
      She necessarily did not have the advantage of a decision of this court of very recent date, 31st March 1999, the case of R v Baker and Ward which Mr Mather‑Lees has drawn to our attention, in which not only the limitations on the defence of duress but the way in which that question should be considered before a court was dealt with.  The court said this, as reported in The Times newspaper:
 
"In some situations the evidence might be so clear that the judge would be entitled to rule that the defence was not open to the accused, for example, where he had joined a terrorists organisation or a gang of armed robbers.
 
In other cases, the accused might have joined criminal groups where the question whether he had by so doing voluntarily placed himself in a position where he was aware that he was likely to be subjected to duress would be less clear and the issue would have to be left to the jury."
  
The only substantial point, as it seems to us as at present advised in this case, is whether the judge was correct in her estimation as to whether the case was one for her to decide as she thought, or whether it was an issue that should be left to the jury.
      Further, it is not clear from the report we have of Baker and Ward whether or not this court has given  guidance as to the test that the judge should apply in considering that question and equally the test or the approach that this court should apply in cases where it is said that the judge has made a wrong choice as to whether he or she should deal with the case or the jury should deal with it.
      It seems to us that there is sufficient uncertainty both in the circumstances of this case and in the correct law that ought to be applied in this particular situation for it to be right for this appeal to be considered by the full court.
      Anything that we have said, of course, in this judgment this afternoon in no way binds the full court when they have the advantage of fuller and more extensive consideration of the case.
      In the event, therefore, we grant leave to appeal.  We grant Mr Mather‑Lees legal aid for the purposes of this application and also we extend legal aid, counsel only, for the hearing of the appeal.