Abstract
Keywords
This case relates to the availability of the common law defence of duress, to a charge of conspiracy to commit murder. The relevant events took place in Nassau, the Bahamas, and the case was therefore tried in the Supreme Court of the Bahamas. Following an unsuccessful appeal in the Court of Appeal of the Commonwealth of the Bahamas (hereinafter, Court of Appeal), the appellant brought their case to the Privy Council of the United Kingdom (the Board).
Background and Trial
Caryn Moss (appellant) was convicted of conspiracy to commit murder by a unanimous jury at the Supreme Court of the Bahamas. The prosecution's case was that she, between 30 April and 1 May 2016 brought O’Neill ‘Yardy’ Marshall to a specific location, where he was to be shot and killed. Marshall was, at the time, in a witness protection programme and was due to give evidence in a murder trial against a notorious gang leader. The appellant was aware of both this, and the fact that a plot to kill Marshall existed. Indeed, in the lead up to Marshall's death the appellant, was approached on three separate occasions between December 2015 and April 2016 and was asked by three different men to give up Marshall's location; and was on two of these occasions, offered money ($200,000) and the promise of safety for doing so. Three men were charged with Marshall's murder. These were: Ramon ‘razor’ Sweeting, Jamaric ‘Big Meech’ Green and Ian Porter. However, the charges against all three were withdrawn, and it appears that no other person has subsequently been charged with murder in relation to Marshall's death. Big Meech was the man involved in the third approach, after which the appellant stated that, having stopped answering Big Meech's calls, she began to receive text messages from him. The appellant stated that she did not respond to these messages, as she thought Big Meech wanted to kill her.
The appellant was then contacted again by and subsequently met Big Meech on the morning of 30 April 2016. The appellant stated that, whilst driving in Big Meech's car, he threatened her. Notably, Big Meech is said to have told the appellant that she ‘…know too much information and [she] won’t set them up to go down’ (at [17]). It is noted that ‘them’ refers to the gang to which Meech and others belong.
The appellant stated that Big Meech then devised a plan, which involved the appellant collecting Marshall in a car, driving the car to the end of Yorkshire Street, where Marshall would be killed.
On the evening of 30 April 2016, at some time after 10:30 pm, by her own admission the appellant, in a car provided by Big Meech and one other man, collected Marshall and drove to the end of Yorkshire Street. The appellant stated that she told Marshall that she was going to get something to smoke. However, she, in fact, went to the house of her godparents, where she and her godfather are said to have heard seven to eight gunshots, after which the appellant ran home. It is noteworthy that the child locks had been deployed in the car, and the internal door handles removed, meaning Marshall could not escape. The appellant admitted knowledge that Marshall would be killed when she left the car on Yorkshire Street.
On the morning of 1 May 2016, the car in which the appellant had collected Marshall was found, along with his body. The appellant was subsequently arrested, and charged with conspiracy to commit murder and her jury trial commenced on 25 June 2018. Whilst the appellant did not give evidence at her trial, her counsel advanced a defence of the absence of an agreement between her and her co-conspirators thus, in the absence of an agreement, there can be no conspiracy. Following closing speeches, trial judge Bethel J, as she then was, raised the question as to whether the appellant was to rely on the defence of duress. The appellant's counsel responded in the negative, highlighting that, whilst he mentioned duress in advancing the appellant's defence, he did so in the context of demonstrating the lack of a true agreement, rather than as a defence to the charge of murder. As a result, the trial judge directed the jury that duress was not a defence to conspiracy to murder (para [33]), after which the appellant was convicted of conspiracy to commit murder.
Appeal to the Court of Appeal of the Commonwealth of the Bahamas
The appellant brought the matter before the Court of Appeal (Caryn Moss vs The Director of Public Prosecutions SCCrApp & CAIS No. 230 of 2018), appealing against her conviction principally on the basis that:
The absence of evidence of a conspiracy rendered Bethel J's ruling that there was a case to answer wrong in law. Bethel J had misdirected the jury that duress was not a defence to conspiracy to commit murder and that, on the facts, the defence of duress ought to have been left to the jury by the trial judge.
The appellant's argument in relation to the first ground was that there was no evidence of agreement on the part of the appellant and, therefore, the absence of evidence of agreement, there can be no conspiracy. The Court of Appeal dealt quickly with this ground, noting that the appellant signified agreement through the use of the word ‘Okay’ and her subsequent participation in the activities leading to Marshall's death satisfied both the trial judge, and themselves, that the matter should go before a jury (Court of Appeal Judgment, para [26]).
In relation to the second ground, the Court unanimously held that the defence of duress was not available to a charge of conspiracy to murder. A comprehensive analysis of the Court of Appeal's Judgement is beyond the scope of this short case commentary. However, it is noteworthy that the Court highlighted the absence of any English Case Law that could be relied upon as precedent in arriving at a decision (Court of Appeal Judgment, para [37]). Instead, the Court looked to give effect to what they thought to be the intention of Parliament, arriving at the conclusion that, where a person is charged with abatement or conspiracy to commit murder and the murder is actually committed, their charge should be treated idem murder when considering the availability of defences (Court of Appeal Judgment, para [52]). However, the legal principles relied upon in support of this view were based on available sentences for such offences, rather than the operation of the defence of duress itself. The Court of Appeal specifically noted that, where a person is convicted of conspiracy to commit murder and a murder actually takes place, in accordance with Bahamas law, they should be sentenced as if they themselves committed the murder (Court of Appeal Judgment, paras [45] – [49], citing The Bahamas Penal Code, sections 89, 90 and 291). The Court, whilst holding that the trial judge's ‘direction to the jury that “
Indeed, focussing on the case of Hasan (formerly Z) [2005] 2 AC 467 which sets out the following seven limitations to the defence of duress:
Duress does not afford a defence to charges of murder or attempted murder. There must exist a threat of death or serious injury, which is… …directed towards the defendant, their immediate family or someone close to them. The defendant's perceptions and conduct must be inline with that of a reasonable person in those circumstances. The threats must have caused the defendant to engage in the criminal conduct for which they have been charged; and There must have existed at the time, no evasive action which the defendant could reasonably have been expected to take to avoid engaging in criminal conduct. The defendant must not have voluntarily laid himself open to threat (cited in para [40] of the Board's Judgment).
The Court of Appeal held here that, even if the defence is available to conspiracy to commit murder, the appellant's case at first instance fell foul of the second and fourth limitations. Namely, that there was no express threat of death or serious injury, and that the defendant did not act reasonably in response to the threats made by the gang members. Thus, the Court of Appeal rejected all grounds raised against conviction raised by appellant and, as a consequence, dismissed the appeal in this regard (Court of Appeal Judgment, para [53]).
For the sake of completeness, it should also be highlighted that the appellant, having been sentenced to 20-year imprisonment, sought to appeal this sentence as harsh and excessive. However, the Director of Public Prosecutions submitted a cross-appeal in relation to the sentence on the basis that it was unduly lenient. The Court of Appeal dismissed the appellant's appeal and upheld the Director of Public Prosecution's cross-appeal, raising the sentence to 35-year imprisonment (Court of Appeal Judgment, para [93]) on the basis that the appellant played an active role in luring Marshall to his death.
Appeal to the Privy Council
The appellant appealed her conviction to the Privy Council on the following grounds:
That the trial judge erred in directing the jury that the defence of duress was not available to the offence of conspiracy to murder; and the trial judge, on the facts of this case, should have left the matter of duress to the jury.
The appellant also appealed against the 35-year prison sentence handed down by the Bahamas Court of Appeal, on the basis that the Court failed to take into account a relevant mitigating factor; namely, that the appellant was coerced into committing the offence of conspiracy to commit murder.
At the outset, the Board made it clear that they did not intend to set out whether they agree or disagree with the Court of Appeal's decision on whether the defence of duress was available to a charge of conspiracy to murder (para [54]). In doing so, the Board noted that such a question should be determined as and when the matter of duress arises on the facts of a particular case. Instead, with Lord Lloyd-Jones JSC stating that the Board were able to proceed on the assumption that the defence was available to a charge of conspiracy to commit murder, the Board proceeded to base its opinion on whether the appeal against conviction should succeed, on the basis of whether there existed sufficient evidence for a case of duress to have been left to the jury at trial.
In this regard, the Board agreed with the Court of Appeal, also arriving at the opinion that the then Bethel J was right not to put the defence of duress before the jury in this case. The Board, however, did so for differing reasons. Notably, and with regard to the limitations set out in Hasan (above), the Board found that, when placing the comments made to her by Razor, Carlton and Big Meech in the gangland context (on the basis that the individual against which Marshall was due to give evidence was a notorious gang leader), it was reasonable for the appellant to perceive a threat of death or serious injury and to act in the way in which she did. However, the Board then turned to a consideration of the sixth limitation and, in essence, found that the appellant had given no evidence that death or serious injury would occur immediately or almost immediately as a result of her failure to deliver Marshall to the agreed location; thus finding that the appellant could reasonably have been expected to take evasive action to avoid both being involved in Marshall's death and coming to harm herself (para [69]). As such, the appellant's appeal against her conviction was dismissed on all grounds.
Turning to the appeal against the sentence imposed by the Bahamas Court of Appeal, the Board noted that the appellant was to be sentenced for murder, as the Bahamas Penal Code (section 90(1)) states that individuals who are convicted of conspiracy to commit an offence shall be sentenced as if they committed the substantive offence (para [71] of the Board's Judgment). In relation to the length of sentence, the Board agreed in principle that a sentence of 30- to 60-year imprisonment to be the appropriate sentence range. However, given that the appellant had been, on the Board's finding, subject to a threat of death or serious injury, the words of Bingham LJ in Hasan were deemed to be relevant. Namely that: If it appears at trial that a defendant acted in response to a degree of coercion but in circumstances where the strict requirements of duress were not satisfied, it is always open to the judge to adjust his sentence to reflect his assessment of the defendant's true culpability. (para [84], citing Hasan para [22])
Commentary
This case did little to offer clarity as to whether the common law defence of duress is available to a charge of conspiracy to commit murder. The fact that the Board of the Privy Council declined to offer any indication as to whether it agreed or disagreed with the Court of Appeal's judgment that duress was not a defence to such a charge, has left trial judges in the Supreme Court of the Bahamas in a rather precarious position in that they are bound to apply a judgment of their Court of Appeal, a judgment over which the Board of the Privy Council did indicate some degree of uncertainty (para [53]). This is rather concerning, not least because the rationale deployed by the Court of Appeal is somewhat tenuous. Indeed, as noted above, the Court of Appeal utilised the approach to sentencing conspiracy offences set out by the Bahamas Penal Code, noting that where, as in the instant case, the murder has been carried out, the accused should be sentenced for murder (Court of Appeal Judgment para [47] citing s.91 of the Bahamas Penal Code). The Privy Council offered no indication as to whether they agreed or disagreed with the approach of the Court of Appeal in its use of the rules pertaining to the sentencing of the offence of conspiracy to commit murder, to infer the intention of the Parliament of the Bahamas as to the availability of a defence to a charge of the same offence. Whilst it is, of course, at the behest of law makers in the Bahamas to legislate in order to alleviate this uncertainty, the Board could have offered the Court of Appeal some indication as to whether they agreed with the approach taken by it in this case, whilst continuing to decide the case based on the factual absence of an immediacy of danger to the appellant.
In relation to its impact on the wider application of the Court of Appeal's judgment, it is clear that the Courts of Commonwealth Countries look to consider how English common law, or codified rules, the roots of which can be found in the English common law, is to be applied. For example, when the instant case was in the Court of Appeal, the justices turned to the Criminal Code of the British Virgin Islands to aid their interpretation of the Penal Code of the Bahamas. It therefore follows that there exists a chance that the decision of the Court of Appeal, in this case, has the potential to influence decisions by courts in other jurisdictions.
More broadly, it would have been useful if, in obiter, the Board of the Privy Council had offered a view on the issue of duress as a defence to conspiracy to commit murder, in order to aid all those who might be required to apply the English common law of duress. They, of course, would not be the first court to do so, a fact which further cements the notion that doing so in the context of the instant case would not be problematic. Indeed, the Court of Appeal in the instant case made reference to Gotts [1992] 2 A.C. 412, in which Lord Lane made reference to the fact that ‘conspiracy, incitement and so on are, generally speaking, a stage further away from the completed offence than is the attempt’ (Court of Appeal Judgment, para [35]). As such, it is possible to infer from this, that some judges might deem it appropriate to allow the defence of duress to be available for conspiracy to murder and, had the Board indicated this in obiter, this might have provided a basis upon which judges in other cases could create binding precedent, or persuade the United Kingdom Parliament to consider, with greater urgency, the need to provide legislation which clarifies the position. That being said, the rationale that was outlined for doing so, namely that a decision on whether duress can act as a defence to conspiracy to commit murder should be decided by a case in which the defence arises on the facts, is arguably a good one, notwithstanding the uncertainly which ensues.
This then leaves one question – whether the defence of duress should apply to the offence of conspiracy to commit murder. This is by no means a new debate, with O’Hanlon and Ormerod (Duress Conspiracy to Murder, [2011] 8 Crim. L.R 645) highlighting, in the absence of concrete precedent from senior courts, trial judges have been minded to leave the defence of duress to the jury in cases involving conspiracy to commit murder, which is very much in the spirit of Lord Lane's comments outlined above. In this light, it is arguable that the core reason why this case has found its way before the Privy Council, arises directly from the Bethel J's decision not to place the defence of duress before the jury. It therefore follows that, until a trial judge in an English case refuses to leave the matter of duress to the jury and this decision is appealed, there is unlikely to be any greater certainty offered to trial judges in this regard.
At this juncture, it is worth highlighting the rationale for cementing Lord Lane's proposal in Gotts, in allowing duress in cases of conspiracy to murder. It is clear from the facts of Moss, that an individual who might find themselves charged with this offence can do so as a result of coercion; a characteristic which may indicate a degree of vulnerability which existed at the time they agreed to conspire to commit murder. As such, to exclude conspiracy to commit murder from the offences to which a defence of duress can apply, would potentially restrict use of the defence by those who have been exploited and subsequently coerced into committing said offence, which would arguably go against current policy direction in this regard. Indeed, lessons have been learnt from cases such as Ahluwalia [1992] 4 All E.R 889 and more recently Challen [2019] EWCA Crim 916, which indicate that people kill for reasons beyond that of an unjustifiably selfish desire to have someone dead. The same thinking can be applied in the context of cases involving vulnerable people who are accused of conspiracy to commit murder; in that whilst they are aware their actions might lead to the death of another, the extent to which they desire that person dead might well differ significantly from that of a person who themselves commits or attempts to commit the act of killing. Indeed, O’Hanlon and Ormerod identify a similar deference in relation to the proximity to the killing (page 648). In essence, it should not be assumed, simply because a person conspired to commit murder, that they bear the same want for the victim to be killed. Thus, the decision to exclude duress as a defence to conspiracy to commit murder should be taken with regard to the nuances of the different offences, as opposed to the rules pertaining to the sentencing of those guilty of the offence in question.
Thus, the case of Moss only adds to the complexity of the application of the common law defence of duress and could be deemed an opportunity missed, in terms of clarifying the availability of duress to a charge of conspiracy to commit murder. However, the notion that Privy Council is not the right forum in which a lucid explanation of an English common law defence should be offered is persuasive, particularly where it is held that the relevant defence does not arise from the facts of the case before it. It is, perhaps, time for Parliament to add the defence of duress to the statute books, in order to offer greater clarity to trial judges both in England and Wales, and those Commonwealth countries who continue to apply the common law defence of duress.
