R v Bowen [1996] EWCA Crim 1792; [1997] 1 WLR 372
Duress: personal characteristics and the person of reasonable firmness.
Facts
Cecil Bowen obtained electrical goods on about forty occasions between January 1992 and June 1994 using instant-credit arrangements. He paid deposits but did not complete payment for any of the goods. The credit obtained totalled about £20,000. He was arrested while attempting to obtain a camcorder in the same way.
In police interviews he admitted selling goods and stopping repayments. He said he thought he was getting into debt rather than committing an offence. At trial, however, he maintained that two men had threatened to petrol-bomb him and his family unless he obtained goods for them. He also said they threatened his family if he contacted the police.
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A defence psychologist gave evidence that Bowen had an IQ of 68, a reading age below seven and unusually high suggestibility. The prosecution psychologist disputed those conclusions and thought his IQ was higher. This evidence had been introduced to challenge the reliability of his interviews; the ruling admitting the interviews was not itself appealed.
Bowen was convicted of five specimen counts of obtaining services by deception and received concurrent sentences of eighteen months’ imprisonment. He appealed against conviction.
Issue
The trial judge had asked the jury to consider a person of reasonable firmness of Bowen’s age and sex, in the same circumstances. Defence counsel argued that the direction should also have said that the hypothetical person shared Bowen’s characteristics. On appeal, counsel accepted that mere suggestibility and vulnerability were irrelevant, but argued that his low IQ could inhibit his ability to seek police protection.
Decision and reasoning
The Court of Appeal dismissed the appeal. Stuart-Smith LJ explained the distinction between whether the defendant had acted because of threats and the objective question of whether a sober person of reasonable firmness, with relevant characteristics, would have responded as the defendant did.
The objective standard could not simply be reduced because a particular defendant was unusually timid, pliable or susceptible to pressure. Giving the hypothetical person those traits would undermine the requirement of reasonable firmness. However, characteristics placing a defendant within a category of people less able to resist pressure could be relevant. The court’s examples included youth, possibly sex, pregnancy, serious physical disability affecting self-protection, and a recognised mental illness or psychiatric condition such as post-traumatic stress disorder leading to learned helplessness.
The court therefore did not exclude all evidence about mental condition. Psychiatric evidence could assist where it established a relevant illness, mental impairment or recognised condition whose sufferers generally might be more susceptible to threats. It could not merely establish that this individual was especially suggestible, or be used to bolster the defendant’s credibility. Characteristics arising from self-induced abuse of alcohol, drugs or glue were excluded.
In Bowen’s case, low IQ alone, falling short of mental impairment or mental defectiveness in the court’s terminology, did not show reduced courage or an inability to withstand threats. The specific argument based solely on IQ had also not been advanced at trial. The court considered age and sex the only relevant characteristics on the evidence.
Moreover, in two passages the judge had told the jury to acquit if they believed Bowen’s account, or thought it might be true. Those directions were favourable to him. Adding an unqualified instruction to consider all his characteristics could have confused the jury by suggesting that personal vulnerability was relevant. The directions were sufficient, and the convictions stood.
The court also said that counsel should identify any proposed additional characteristic to the judge before speeches, outside the jury’s presence, so that its legal relevance could be decided.
