Not Saussure

April 20, 2007

Forcing victims of gun crime to give evidence?

Filed under: Law — notsaussure @ 8:08 pm

Via Gracchus, at Westminster Wisdom, and Unity, at The Ministry of Truth, what Unity rightly calls a ‘frankly staggering suggestion’ from the Chief Constable of Merseyside, Bernard Hogan-Howe. In an interview in The Guardian, Mr Hogan-Howe apparently

said it was clear that more and more young people were getting involved in gun crime and that they were being protected by a wall of silence.He said the only way to address this was to adopt laws similar to those in Australia “where people have a duty to report information about gun crime to the police”. He also believes the laws should extend to victims of gun crime who survive being shot but refuse to make a complaint because of fears of reprisals.

“The challenge is: people who survive do not want to complain and the best witness is quite often the victim who can help provide a description and motive. By refusing to help it can put the investigation on to the back foot.”

Unity comments that

What Hogan-Howe is suggesting is that we take people who’s testimony could put a criminal in prison for a very long time but who refuse to testify for fear of reprisals, into prison with other criminals, some of whom could quite possibly be associates of the individual against whom the witness/victim is asked to give evidence.It should be obvious, even by now, where this is heading, especially where the shooting in question was related to gang activity and/or organised crime – putting a witness in prison for refusing to testify stands a very good chance of resulting in the police finding themselves with a dead witness on their hands, if by mischance or oversight they are imprison alongside an associate of the criminal against whom they’re being ordered to testify.

Fortunately, the idea is, it seems to me, a non-starter because it runs headlong into the common-law defence of duress,which is why, I would imagine, the courts don’t use the perfectly adequate powers they’ve already got to compel unwilling witnesses in such cases.

Duress by threats or circumstances is a common-law defence — that is, it’s nowhere in statute but has been built up by case law over the centuries — and is, at least in the opinion of the Law Commission, among others, long-overdue to be put on a simpler, statutory footing. The Law Commission recommended this back in 1993; the report is not available online as far as I know, but they have a very helpful survey of the law on the subject in Chapter 6 of their recent report on Murder, Manslaughter and Infanticide. It’s available in all cases other than murder, manslaughter, treason and (arguably) conspiracy. It’s certainly available in cases of perjury, though, as was rehearsed in the case of R v Hudson and Taylor [1971] 2 QB 202. The facts of the case were these:

On the 6th April 1969 a fight took place in a Salford public house between one Wright and one Mulligan with the result that Wright was charged with wounding Mulligan. Each of the present appellants gave statements to the police and they were the principal prosecution witnesses at Wright’s trial. Elaine Taylor is 19 and Linda Hudson is 17.Wright’s trial took place on the 4th August 1969 but when called to give evidence the appellants failed to identify Wright as Mulligan’s assailant. Taylor said she knew no one called Jimmy Wright, and Hudson said that the only Wright she knew was not the man in the dock. Wright, was accordingly acquitted and, in due course, the appellants were charged with perjury. At their trial they admitted that the evidence which they had given was false but set up the defence of duress. The basis of the defence was that, shortly after the fight between Wright and Mulligan, Hudson had been approached by a group of men including one Farrell who had a reputation for violence and was warned that if she “told on Wright in court” they would get her and cut her up. Hudson passed this warning to Taylor who said that she had also been warned by other girls to be careful or she would be hurt. The appellants said in evidence that in consequence of these threats they were frightened and decided to tell lies in court in order to avoid the consequences which might follow if they testified against Wright. This resolve was strengthened when they arrived at Court for Wright’s trial and saw that Farrell was in the gallery.

In his judgement, Lord Widgery said,

This appeal raises two main questions;

  • first, as to the nature of the necessary threat and, in particular, whether it must be “present and immediate”;
  • secondly, as to the extent to which a right to plead duress may be lost if the accused has failed to take steps to remove the threat as, for example, by seeking police protection.

Answering the first question, he said

In the present case the threats of Farrell were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night;

answering the second, he said that’s really a matter for the jury. The argument ‘they should have gone to the police’

does not distinguish cases in which the police would be able to provide effective protection, from those when they would not, and it would, in effect, restrict the defence of duress to cases where the person threatened had been kept in custody by the maker of the threats, or where the time interval between the making of the threats and the commission of the offence had made recourse to the police impossible. We recognise the need to keep the defence of duress within reasonable bounds but cannot accept so severe a restriction upon it. […]In the opinion of this court it is always open to the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective, and that upon this being established the threat in question can no longer be relied upon by the defence. In deciding whether such an opportunity was reasonably open to the accused the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon.

This, it seems to me, is the perfect defence for the unwilling witness in gun-related crimes who’s been threatened; he’s in identical circumstances to the two girls in Hudson and Taylor, and I can’t see how any jury could convict him for refusing to give evidence under the Chief Constable’s proposed law or, if he does give evidence, for perjuring himself.

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  1. You reasoning is sound but there is just the one ‘wrinkle’ – Parliament is sovereign as may, therefore, exclude duress from consideration in framing a law to compel witnesses to give evidence.

    Whether that would then be incompatible with HRA is another question entirely. I suspect it may not be – and it certainly would be challenged under the right to a fair trial.

    Comment by Unity — April 21, 2007 @ 9:09 am

  2. Parliament could certainly do that if it wanted to, but I don’t, practically speaking, see how it could so do without simultaneously trying to codify the law on duress in general (at the very least, they’d have to change the law on perjury, after all). This is something successive governments have proved very unwilling to do, even when — for example — invited so to do by the Law Lords because, at the moment, duress is a perfectly good defence to charges of hijacking a plane, as those Afghan hijackers who’ve so annoyed successive Home Secretaries over the years have demonstrated.

    I just don’t, realistically, see it happening over something like this.

    Comment by notsaussure — April 21, 2007 @ 10:29 am

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