Neutral Citation Number: [2009] EWCA Crim 2393
Case No: 200902627/B3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Wednesday, 28th October 2009
 
B e f o r e:

LORD JUSTICE STANLEY BURNTON

MR JUSTICE PENRY‑DAVEY 
 
MRS JUSTICE SHARP DBE 
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R E G I N A 

v 

RAKESH LAL 
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Mr D Chandler (Solicitor Advocate) appeared on behalf of the Appellant 
Miss S Gates appeared on behalf of the Crown 
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J U D G M E N T 

1.	MR JUSTICE PENRY-DAVEY:  On 20th April 2009 in the Crown Court at Harrow this applicant was convicted following his change of plea to guilty on rearraignment of damaging property, theft and attempted theft.  On 18th September he was sentenced to 3 months' imprisonment on each concurrent.  On the same occasion, on a separate indictment, he received a consecutive term of 3 months' imprisonment, making a total of 6 months less 32 days served on remand, under section 240 of the Criminal Justice Act 2003.  He seeks an extension of time in which to renew his application for leave to appeal against conviction after refusal by the single judge.
2.	We should indicate that the matter that has proved determinative of this application was not raised expressly in the original grounds, it was not therefore before the single judge and on the material that he had before him, we find his conclusion entirely understandable.  Thereafter the renewals form was received, it appears by fax at the Criminal Appeal Office on 9th October 2009, two‑and‑a‑half months out of time, although it is contended that solicitors had sent the document at an earlier stage.
3.	The allegations against the applicant were these.  On 16th February 2008 he been caught leaning in through a smashed window of a car belonging to Mr Habte, attempting to remove the car stereo and, when searched, was found to have the stereo remote control already in his pocket.  He was arrested.  It was not possible to interview him immediately because he was both deaf and non speaking and there was no sign language interpreter available.  He was eventually interviewed in the presence of a solicitor on 14th April 2008, in the course of which he accepted smashing the window and taking the remote and attempting to remove the stereo.  However, he stated that he was acting under duress from someone who had previously stabbed him and broken his jaw.
4.	During the trial evidence was admitted of a number of incidents in which the applicant was the victim of crime.  There was a robbery in 2004, in which he suffered a cut to his leg and £1500 was stolen.  He stated that the assailants were known to him and gave evidence that these people were the same as put him under duress in the instant case.  Secondly, an assault on 12th September 2004, when he was punched by an ice cream van driver seemingly without motive.  He said his assailant knew the robbers from an earlier incident.  Thirdly, a robbery on 7th February 2006 when he was confronted by three men who stole his bike, jacket and phone.
5.	His previous convictions, for some 21 offences, were adduced by agreement and he gave evidence that he had pleaded guilty in each case.  The prosecution case was that the applicant had deliberately caused criminal damage to the vehicle, thereafter stolen the remote control and attempted to steal the stereo.  The defence case was that the applicant was acting under duress at the material time.
6.	The applicant gave evidence that he was cycling along one afternoon when he met two men who forced him to break into the car and steal the stereo.  He had known these men for many years, they were called "Jitty" and "Satty".  They were responsible for getting him addicted to heroin in 2001.  He had been purchasing drugs from them ever since.  They were responsible for the attack upon him in 2004 when he was stabbed and robbed.  He also believed that they knew the ice cream van driver who had assaulted him later that same year. They had forced him to commit crimes for them in the past and indeed all the post 2005 convictions he said had been committed whilst acting under duress.
7.	Prior to the summing‑up the judge heard submissions regarding the appropriate directions to the jury on duress.  It is put thus by Mr Chandler in the perfected grounds:  
"As is usual, before closing speeching and in the absence of the jury the learned judge discussed various issues relating to the law which would need to be addressed in the summing‑up.  Most interesting of these was duress and in particular the concept of voluntary exposure to risk.  Both prosecution and defence made written submissions and engaged in oral argument in which two issues were live.  Firstly, the extent to which the relationship between Mr Lal and his alleged duressors ought to have led him to foresee the possibility of compulsion to commit crimes from threats of violence, and secondly, the consequence of Mr Lal having stopped voluntarily. 
It was implicit in argument, although perhaps never made clear to the court, that the prosecution and the defence were in agreement that these issues were fit to be left to the jury, albeit that the learned judge had some decisions to make in the form of her directions to the jury."
8.	In the event, when the judge having made a number of  findings of fact came to the end of her ruling she said this:  
"I conclude, therefore, having considered all matters, that despite the defendant's previous experiences of association with his drug dealers, he voluntarily exposed himself to risk he knew and ought reasonably to have foreseen the risk of being subjected to compulsion to commit crimes by threats of violence.  As a result of this ruling, I propose that the defence of duress is withdrawn from the defendant." 
9.	What counsel for both parties were expecting, following the submissions was an indication by the judge of the nature of the direction on duress that she intended to give to the jury.  What, however, the judge did in the event was to rule that the applicant had voluntarily exposed himself to the risk of duress and could not therefore rely upon it as a defence to the charges.  In other words, she withdrew the defence of duress from the jury's consideration, in a situation where neither counsel had had any opportunity to address her on that aspect of the matter, and it is in consequence submitted that the conviction of the applicant, albeit on his own confession, following that ruling is therefore unsafe, more particularly where it is conceded by the Crown that this was not a case where the facts were so clear or undisputed that there was no case on duress to be left to the jury.  In other words, it was not a case where no reasonable jury, properly directed, could have failed to find the defence disproved.
10.	It may be that the applicant's account was at least unlikely, if not very unlikely.  But in the light of the concession that has been made and the misunderstanding that clearly arose, in our judgment, the judge was wrong to withdraw the matter from the jury in her ruling or at any rate, to do so without giving counsel any opportunity to deal with the matter.  In the result we cannot regard the conviction as safe.
11.	What we propose to do in the circumstances, this being an application for leave, is to grant the necessary extension of time, to grant leave to appeal against conviction and with the consent of both sides to treat this as the hearing of the appeal, which we do. In the result, we quash the conviction.
12.	We have heard submissions on the question of retrial.  It is the fact that the appellant has served very much the greater part of the sentence imposed.  The Crown do not seek a retrial, although Miss Gates indicated she has no express instructions on the matter.  In our judgment, it is not an appropriate case in all the circumstances for the court to order a retrial and accordingly we do not.