Neutral Citation Number: [2018] EWCA Crim 78 
Case No. 2017/02380/B2
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  23rd January 2018

B e f o r e:

THE  LORD  CHIEF  JUSTICE  OF  ENGLAND  AND  WALES
(The Lord Burnett of Maldon)

MR  JUSTICE  WARBY

and

MR  JUSTICE  DOVE

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R E G I N A

- v -

DANHYAL  YOUNIS  KHAN
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Mr D Gottlieb appeared on behalf of the Applicant

Mr J Hankin QC and Mr C Lester appeared on behalf of the Crown
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J U D G M E N T (Approved)
THE LORD CHIEF JUSTICE:  I shall ask Mr Justice Warby to give the judgment of the court.

MR JUSTICE WARBY:
1.  This is an application for leave to appeal against conviction by Danhyal Younis Khan, who is now aged 25.  He is one of three men who faced trial in April 2017 in the Crown Court at Birmingham on a single count of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979.  

2.  The co-accused were the applicant's uncle, Naeem Younis, and a friend of the applicant's named Kaif Bahar.  The goods in question were Class A drugs.  Put simply, the three men were alleged to have taken part in the importation of heroin between 9th and 19th October 2016. 

3.  There is no doubt that, within that time frame, the applicant was knowingly involved in the importation from Pakistan of about 0.8 kilograms of heroin.  His uncle pleaded guilty at the start of the trial.  On his own account, at the instigation of his uncle, the applicant agreed to and did assume a false identity.  In that identity he arranged to and did accept delivery of a parcel from a courier, knowing that it contained drugs.  He had admitted this much in the course of his trial before His Honour Judge Simon Drew QC and a jury.  His defence was that he had acted under duress.

4.  The applicant gave evidence.  The judge then made two rulings against him.  In the first, the judge refused to allow him to be recalled to give further evidence.  The second ruling was that the defence of duress should not be left to the jury.  The applicant then changed his plea and was convicted on the basis of his plea of guilty.

5.  The applicant now seeks leave to appeal against conviction.  He initially challenged both of the judge's rulings which we have mentioned, but at the hearing today counsel has focused attention on the second ruling and has not pursued the challenge to the judge's refusal to allow the applicant to be recalled.

6.  Meanwhile, whilst these proceedings go ahead, sentence on the applicant and his uncle has been deferred, and the jury has been discharged from returning a verdict against Behar.  A retrial is scheduled.  The single judge referred the present application to this court for pragmatic reasons – to minimise delay – without expressing any view on the merits.

The Facts
7.  The prosecution evidence can be shortly summarised on the basis of the judge's written ruling handed down on 2nd May 2017.  On 13th October 2016 a parcel was sent from Islamabad to Birmingham via the DHL courier service.  Inside the parcel were six leather jackets within which were concealed 98 packages containing 794 grams of heroin, with a street value in the order of £80,000.  The consignee was named as a Mr Zaheer Khan of 55 Fentham Road, Aston, Birmingham.  

8.  Telephone records showed that the applicant's uncle was in regular contact with someone in Pakistan in the days immediately following the sending of the parcel.  During that time, the uncle was also in contact with the applicant on his phone ending 5765.

9.  On 14th October 2016 the parcel cleared customs at Heathrow.  Later that day, the applicant activated a pay-as-you-go phone ending 8278.

10.  On 15th October 2016, Younis sent a text message to the applicant's 8278 phone giving him the DHL tracking number for the parcel.  

11.  On 17th October 2016, the applicant called DHL on the 8278 phone just after 8am.  In a recorded call, of which a transcript was before the jury, he represented himself to be Zaheer Khan and asked if the parcel was due to be delivered that day.  He was told that it was, at any time between 9am and 5.50pm.  He asked if any duty had to be paid and was told that £96 was due.  Later that day, he called DHL a further four times using the same phone.  However, the parcel did not arrive.

12.  The following day, 18th October 2016, Luke Smith, a delivery driver for DHL, was rostered to deliver the parcel.  He stopped his van in Fentham Road, near number 55, shortly before 1pm.  He was then approached by Bahar who asked him if he had a delivery for number 55.  When Mr Smith said that he did, Bahar said that he thought that duty was payable and Mr Smith confirmed this.  The applicant then approached Mr Smith and, identifying himself as Zaheer Khan, signed for the parcel.  At that point either he or Bahar paid the outstanding duty.  Who did so was a matter that was disputed between the defendants.  The parcel was then put in the boot of Bahar's car and the two men drove off with it.  Shortly afterwards, they were stopped and arrested.  The car was searched and the parcel was seized.

13.  Both men were interviewed.  Then declined to comment to all questions.  Younis was arrested later.  All three men were sent for trial.

14.  When the applicant gave evidence in chief he provided a detailed account of what he said was his involvement in the importation of heroin and the background to it.  His account filled in some details of his participation.  He said that he had agreed with his uncle to sign for the parcel, after which Younis had given him a mobile phone and a SIM card pack and told him to put the SIM in the phone and use it to call DHL about the progress of the parcel.  He said that he had failed to activate the SIM and lost it, so that when Younis called him on 14th October to check, he decided to buy another pack.  Having done so, he put the SIM with the 8278 number in the phone.  On 15th October, having obtained the reference number from Younis, the applicant went on the DHL website to track the parcel and in that way discovered that there was £96 duty to pay.  On 17th October he called DHL and was told that delivery was due that day.  He spent most of the day on Fentham Road with Bahar waiting for the parcel.  It was in the course of this period that he made the four chasing calls, only to be told that the lorry had broken down.  That was just after 5pm.

15.  He then called Younis, who called DHL himself and reported to the applicant that delivery would be the following day.  Hence, on 18th October, the applicant and Bahar returned and waited on Fentham Road and in due course received the parcel.  The applicant's evidence was that it was Bahar who paid the duty.

16.  The chief features of the background, according to the applicant, were these.  He was very close to Younis, who is 35 years of age.  They were more like brothers.  He said that on the night of 10th/11th September 2016 Younis had been shot in the arm close to Younis' place of work, which was at a sheesha lounge where the applicant had been working.  The applicant saw Younis shortly after this.  After a period in hospital Younis came to live with the applicant's family.  They spoke about the shooting.  Younis refused to go to the police about what had happened.  He said that he did not trust the police and that someone called Kiyani, who was a relative of the applicant, and Kiyani's mates would kill him if they found out that he had gone to the police.

17.  About a week and a half to two weeks before the applicant's arrest, Younis told him that Kiyani had demanded that he did a favour, or he would be shot again.  The favour required was to sign for a parcel.  The applicant believed that the parcel might contain drugs because he knew that Kiyani had previously been arrested for importing drugs.  The applicant again suggested that Younis go to the police, but Younis again refused to do so.  He repeated that he did not trust the police and that if he did so "they" would shoot him or his kids.  Younis said that he feared that he was being set up to attend a meeting where he would be shot.  Younis, according to the applicant, kept asking the applicant to sign for the parcel and eventually he agreed.  His account was that he did so in order to prevent his uncle or his cousins from being shot, believing what his uncle had told him.  He picked up the parcel because he believed that otherwise the lives of Younis and his children would be in danger.

18.  In cross-examination the applicant made a number of concessions.  He agreed that, having studied police methods and procedure at university, his first instinct on hearing about the threat to his uncle was to go to the police because they would be able to help.  Asked why he did not himself go to the police at that stage, he could not explain.  He said, "I don't know".  He agreed that at the time when he agreed to sign for the parcel he was not himself under any threat of violence.  He agreed that Younis was not under any threat of immediate violence at that time either.  The threat of harm to Younis and his children would only be carried out if and when the parcel was not signed for.  He accepted that on 17th and 18th October, despite believing that the lives of his uncle and cousins depended on him, he had left Bahar on his own on Fentham Road for long periods of time, including a visit to the shop to buy some chips and one to his grandmother's.

19.  At the close of this evidence Mr Gottlieb, who appeared for the applicant at the trial as he does today, conceded that on the applicant's own account all the elements of the offence charged were made out, but submitted that the defence of duress could be left to the jury.  Mr Hankin QC, for the Crown, resisted that submission.  Mr Gottlieb submitted to the judge that the evidence of his client, or the effect of it was that he had believed that if he went to the police then his uncle or his uncle's children would be killed.  The judge indicated that he did not believe that this was the true state of the evidence.  Mr Gottlieb responded that in that case "the answer would be to apply for leave to recall my client and he could be asked simply to clarify what is really being said".  The judge replied, "No.  He is not going to get a second chance about this".  It was that response which originally formed one of the grounds of appeal, which has not been pursued today, as we have said.

20.  We turn, therefore, to the judge's ruling on the defence of duress.  The classic statement of the law in this area is that of Lord Lane CJ in R v Graham (Paul Anthony) [1982] 1 WLR 294.  There are two questions: the first is whether the defendant was or may have been "impelled to act as he did because as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or cause him serious physical injury".  The principle has since been extended to cover threats to kill or injure members of the defendant's family.  It has never been disputed in this case that a threat to the applicant's uncle is capable of founding a defence of duress.

21.  If the answer to the first question is "Yes", the second question arises.  It is this: whether the prosecution have "made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence]".

22.  The legal principles, including those limiting the scope of the defence were authoritatively re-stated by Lord Bingham in R v Z [2005] UKHL 22, [2005] 2 AC 467.  The defence and its application have been reviewed in a number of decisions of this court, including: R v Bianco [2001] EWCA Crim 2516, R v Batchelor [2013] EWCA Crim 2638, R v Hammond [2013] EWCA Crim 2709, and R v Brandford [2017] 1 Cr App R 14.  These cases were all cited and considered in the careful written reasons of Judge Drew QC.   It is enough for present purposes to identify the following six points, which are reflected in the judge's ruling and are not controversial:

1.  There is strong objective element in the defence reflected in, among other things, the test of what a sober person of reasonable firmness would do: see Brandford at [32] and Z at [21(4)].

2.  There is the question of whether evasive action could have been taken.  Lord Bingham put it this way at [21(6)]:

"The defendant may excuse his criminal conduct on grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take…  This is an important limitation of the duress defence …"

3.  The threat must carry immediacy; otherwise, a defendant may find it impossible to dispute his ability to take evasive action: see Brandford at [33].  In Z Lord Bingham said at [28] this:

"… if the retribution threatened against the defendant or his family … is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little, if any, room for doubt that he could have taken evasive action, whether by going to the police or in some other way to avoid committing the crime with which he is charged."

4.  Where a defence of duress is raised, the burden lies on the prosecution to disprove it to the criminal standard of proof: Brandford at [36].

5.  Ordinarily, it will be for the jury to decide whether the prosecution has succeeded in this task.  This court as warned that there is a thin line between cases where a judge is entitled to withdraw the defence from the jury and those where, on the other hand, he or she impermissibly reaches a conclusion on the facts and thus usurps the fact-finding role of the jury: see Hammond at [6].  

6.  Judges do, however, have a responsibility to make rulings of law.  The judge should exercise caution.  But if the case is one in which the evidence fails to raise an arguable basis for a duress defence and no reasonable jury could conclude that the defence is or may be available, the judge is entitled – indeed he would be right – to withdraw the defence from the jury's consideration.  The constitutional function of the jury does not include a right to reach perverse conclusions: see Bianco at [15], Batchelor at [16] to [19] and Brandford [37] to [38].

23.  In this case the judge identified two key questions that arose on the evidence.  The first was whether the threat was an immediate one ("the immediacy issue").  The second was whether it would have been possible for the applicant to take evasive action ("the evasion issue").  In the judge's view, these were separate and distinct questions.  Having reviewed the authorities, the judge concluded that, in principle, in determining whether a reasonable person of the applicant's age and background may have been driven or forced to act as he did, the jury should consider: 

(1) whether or not the threat would be carried out immediately or almost immediately.  If they are sure it would not be, then the defence cannot arise;

(2)  whether there was any evasive action open to the applicant in order to avoid committing the crime.  If they are sure that there was, then the defence cannot arise.

24.  Having reminded himself of the words of warning to be found in the authorities, the judge concluded, nonetheless, that he should withdraw the defence from the jury.  So far as the immediacy issue is concerned, he reasoned that the time at which the applicant had first become a participant in the criminal conduct was when he agreed to sign for the parcel.  At that time the threat in existence was not one which any properly directed jury could find was immediate or almost immediate.  It was a conditional threat which would only ever be carried out at some future time.  It was not enough to say that there was a threat that if the parcel was not signed for there would be immediate violence.

25.  Further, or alternatively, the judge reasoned that any reasonable jury would be bound to resolve the evasion issue against the applicant.  On his own account, once he agreed to sign for the parcel and therefore became knowingly concerned in the importation, he could have taken avoiding action, and he knew it, but he failed to do so.  The judge went on to observe that the applicant's failure to go to the police, or even alert or consult family members, continued for at least a week after his first engagement in the exercise and that during that period he carried out a series of further acts in furtherance of the importation.

26.  Mr Gottlieb challenges both limbs of the judge's ruling.  He submits that the jury might have concluded that the applicant had acted under duress of circumstances if it accepted that his evidence was true.  The submission is that the judge failed properly to evaluate the applicant's evidence, of which he did not have a transcript, about the nature of the threat and the reasons that he could not go to the police.  As a result, it is submitted that the judge reached the wrong conclusions on both issues.  The way the matter has been put in argument today is that the main issue is whether the learned judge properly appreciated that there was evidence from the applicant capable of amounting to an explanation as to why he failed to contact the police.

27.  We take the view that the judge's approach to the imminence issue was, at least on the unusual facts of this case, an entirely sound one.  We do not regard the judge's evidential analysis as arguably flawed.  On no view of the evidence was the violence that had been threatened immediate or close to immediate at the time of the applicant's agreement to participate in the importation.  There was a gap in time of at least a week between the engagement in the crime and the earliest time at which the threat might be put into effect.  

28.  But whatever might be said about the judge's approach to the imminence issue, we are quite certain that he reached the right conclusion on the evasion issue.  With the assistance of Mr Gottlieb and Mr Hankin QC for the Crown, we have looked carefully at the transcript of the applicant's evidence.  We have not been persuaded that the applicant's evidence can be read as indicating that he, as opposed to his uncle, believed that if the police were approached, that would lead to his uncle or cousins being killed.  We do not see in the applicant's evidence anything capable of amounting to an explanation of why, as a matter of fact, he did not see fit to approach the police.  

29.  But even if that were wrong, as the authorities emphasise, the test is not (or not only) a subjective one.  The applicant had spent four years studying police procedure.  He offered no explanation for failing to approach the police.  On the evidence in this case there was only one possible answer to the second question posed by Lord Lane CJ, namely that the sober person of reasonable firmness, sharing the characteristics of the applicant, would not have been driven to commit the crime.  He would have taken evasive action by going to the police or perhaps in some other way: for instance, by involving family members.  No reasonable jury could have reached a different conclusion, in our judgment.  The judge stayed firmly on the right side of the line between usurping the role of the jury and the proper exercise of the judicial function.

30.  For those reasons the application is refused.

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