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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> JOHN COCHRANE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 41 (13th June, 2001) URL: http://www.bailii.org/scot/cases/ScotHC/2001/41.html Cite as: [2001] ScotHC 41

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JOHN COCHRANE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 41 (13th June, 2001)

[1] "In the course of nearly thirty years' experience at the bar and on the bench, during which I have paid special attention to the administration of the criminal law, I never knew or heard of the defence of compulsion being made except in the case of married women, and I have not been able to find more than two reported cases which bear upon it." So wrote that most rational of Victorians, Sir James Fitzjames Stephen, in 1883 in his History of the Criminal Law of England Vol. 2, p. 106. To judge at least by the law reports, in Scots law the defence of coercion also lay virtually dormant until about thirty years ago. Since then, coercion and necessity have enjoyed something of a vogue, as have their counterparts in other jurisdictions. The result of so many years of neglect is that the contours of the defence of coercion or duress are not as sharply defined as those of many other aspects of our law. At this late date, to deal with cases like the present, the courts must sketch in some of the detail.

[2] The appellant, John Cochrane, went to trial at Airdrie Sheriff Court along with his co-accused, Kevin Barry Cannon and Robert Sneddon, on an indictment containing a large number of charges against Cannon. Sneddon was convicted of reset on charge 14, a charge which did not concern the appellant. Sneddon's position is therefore of no relevance for present purposes. Cannon pled guilty to certain charges and was found guilty of two others, including charge 12, a charge of assault and robbery on which both he and the appellant were indicted. Cannon appealed against that conviction and in October 1999 this court allowed the appeal and substituted a conviction for theft. The jury also convicted the appellant of the charge of assault and robbery but added a rider "under pressure". The sheriff imposed a sentence of two years' detention. It is against his conviction and sentence on this charge that the appellant has appealed. Charge 12 alleged that

At the time of the offence the appellant was seventeen years of age.

[3] At the trial Cannon had given notice of his intention to incriminate the appellant and the appellant had given notice of his intention to incriminate Cannon. In addition, at the start of the trial diet, the agent for the appellant lodged a special defence of coercion, stating that he pled not guilty

The appellant was given leave to appeal against his conviction on both of the grounds contained in his Note of Appeal. At the hearing of the appeal, however, Mr. Shead really argued only the first of them and accepted that the second would stand or fall with the first. I can therefore concentrate on the first ground, which was to the effect that the Sheriff had misdirected the jury on the law of coercion and, more particularly, that he had misdirected them when he told them to consider whether the threats which the appellant claimed that Cannon had made would have overcome the resolution of an ordinarily constituted person of the same age and sex.

[4] From the time of his detention by the police the appellant admitted taking part in the assault and robbery perpetrated against the complainer, a lady of sixty-one who lived by herself. Her evidence was to the effect that she had returned home from work in the afternoon. She made herself a cup of tea and fell asleep. She had not locked the door and the appellant was able to get into the house without difficulty. When she woke up, she saw the appellant standing over her with her candlestick in one hand and a cushion in the other. He told her to hand over her purse. She replied that he must be joking but he said "I am not joking. Give me your purse." The appellant lifted the candlestick and the complainer struggled with him. The appellant struck her three or four times on the head with the candlestick, while continuing to ask her for her purse. Eventually she told him that she would give him the purse only if he stopped hitting her. He then stole her wages. As a result of the assault the complainer required treatment for two wounds to her head and, at the time of the trial, still suffered from flashback recollections of seeing the appellant in her home.

[5] As can be seen from this account of her evidence, the complainer did not mention the appellant's co-accused, Cannon, as having been involved in the attack on her and, indeed, she was aware of only one person, the appellant, in her house. The main evidence against Cannon on this charge came from the appellant who said that Cannon had told him what to do and had indeed taken most of the proceeds. Cannon's position, on the other hand, appears to have been that the two of them saw the complainer asleep in the house and that he in effect told the appellant that, if she was sleeping, he should go in, look around for her purse and come back out. At one stage Cannon had himself gone into the house, but he had not been aware of, or involved in, the assault on the complainer. Cannon was convicted of the assault and robbery but, as I have already mentioned, on appeal his conviction was quashed and a conviction of theft was substituted, on the ground that there was insufficient evidence that Cannon had been involved in the assault. See Cannon v. H. M. Advocate 2000 S.L.T. 779.

[6] So far as concerns the case against the appellant, in addition to the complainer's evidence there was the appellant's own account. The appellant gave evidence in which he said that he struck the complainer twice with the candlestick, once on the head and once on the back. More particularly, according to the version put to the jury by the Sheriff - the accuracy of which was not disputed in the hearing before us - the appellant said:

And the appellant confirmed that he did indeed then hit the complainer.

[7] According to the Sheriff, the appellant's plea of coercion "was substantially bolstered" by the evidence of a chartered psychologist, Mr. Gary Macpherson, which the defence led without objection. Mr. Macpherson said that he had interviewed the appellant and had assessed his intelligence quotient at 74, which placed him "on the borderline mentally handicapped range" so that he functioned in the bottom four per cent of the population. Mr. Macpherson had also carried out a test using the Gudjonsson Compliance Scale, which placed the appellant in the top ten per cent of the general population, so far as compliance was concerned. This suggested that he was a highly compliant individual. In particular, when asked whether there was a difference between someone being easily led and someone being compliant to this extent, Mr. Macpherson replied:

On the basis of the account given to him by the appellant, Mr. Macpherson considered that the appellant had "most certainly not" wanted to behave in the manner that he did at the time of the offence. He added that he believed that the appellant had believed that he would be assaulted and that his house would be blown up. The appellant had been of the belief that he would be quite severely assaulted if he did not behave in the manner he was instructed to. In cross-examination the procurator fiscal depute limited herself to asking Mr. Macpherson whether the appellant had given any indication of his views about what he had done and to clarifying that in his evidence Mr. Macpherson had used the term "coerced" in its everyday, rather than in its legal, meaning.

[8] In substance Mr. Shead's submission on behalf of the appellant was that, in the case of the appellant who was in the range of borderline mentally handicapped persons and who was, as a result, particularly compliant, the Sheriff had misdirected the jury when he told them that, in deciding whether the appellant had been coerced by Cannon, they had to consider whether any threats by Cannon were such as would have overcome the resolution of an ordinarily constituted person of the same age and sex as the appellant. The Sheriff should have directed them to consider what level of resistance to the threats could reasonably have been expected of the appellant, as a highly compliant individual, with a low I.Q., bordering on mental handicap. The Advocate Depute argued, on the other hand, that the Sheriff had been correct to direct the jury as he did, since the law applied an objective test and judged matters purely on the basis of the reaction of an ordinarily constituted person of the same age and sex. Alternatively, even if some characteristics of an accused person could be taken into account, no mental characteristic short of a mental illness or other recognised disorder was relevant. Here the appellant did not suffer from a mental illness nor was he actually mentally handicapped, even though he was of low intelligence.

[9] It is unnecessary to scrutinise the precise terms of the Sheriff's directions since they were, professedly, modelled on the directions which Lord Hunter gave after hearing submissions in Thomson v. H. M. Advocate 1983 JC 69, a case of assault and robbery. On the appellant's argument Lord Hunter too had been in error. In indicating how he proposed to direct the jury in Thomson, Lord Hunter observed (1983 J.C. at p. 72):

When Lord Hunter came to charge the jury, his directions were indeed along the lines that he had indicated (1983 SCCR 368 at p. 375):

On appeal Lord Justice Clerk Wheatley, giving the opinion of the court, said (1983 J.C. at p. 80) that Lord Hunter had given

In Thomson there was no suggestion that any aspect of the accused's disposition had any effect on his reaction to the alleged threats. The appeal was therefore not concerned with the issue which arises here, but it is nevertheless perhaps worth noting that the court detected no error in any of the directions that Lord Hunter had given.

[10] The fountainhead of the, scarcely purling, stream of Scottish law on coercion is the exposition in Hume's Commentaries - an account that is not, however, to be treated as exhaustive (Moss v. Howdle 1997 JC 123 at p. 127 A - B). For present purposes the relevant passage is in these terms (Vol. 1, p. 53):

Four points seem worth making. First, Hume is dealing with "atrocious" crimes. The assault and robbery which the appellant carried out falls easily within that description. It is therefore unnecessary in this case to consider the position in relation to offences which are less than atrocious. Next, the first of the qualifications mentioned by Hume is that there should be "an immediate danger of death or great bodily harm". In other words, the situation must be that, if he fails to commit the crime, the accused will be attacked immediately. Most obviously, one can envisage the situation where the third party holds a gun at the accused's head or a knife at his throat or where he wields a baseball bat over his legs. But presumably - the Advocate Depute did not argue to the contrary - a mere threat, provided that it is sufficiently immediate, will do. The immediacy of the danger is, however, critical because, in the face of a threat of future violence, the accused may be able to escape and to inform the police. If that is feasible, the defence of coercion is not available. Similarly, if when threatened with death or great bodily harm the accused is in a position to resist any attack - perhaps because he is stronger or more skilful in combat than the third party - then the defence of coercion cannot apply, since the accused should resist rather than commit the crime. Finally, Hume does not include a qualification along the lines that the threats must be such as would overcome the resolution of an ordinarily constituted person of the same age and sex as the accused. Such an express qualification may often, perhaps, be regarded as almost superfluous where the first, strict, requirement of the defence is that the accused should have been in immediate danger of death or great bodily harm. In other words, in a situation where there was an immediate danger of death or great bodily harm, unless it could be averted the danger would ipso facto be regarded as being such as would overcome the resolution of any ordinarily constituted person, whatever their age or sex. This would be in line with the approach in the old case, United States v. Haskell 26 Fed. Cas. 207, Case No. 15, 321 (E.D. Pa. 1823). The accused were charged with piratically and feloniously running away with a vessel. Their defence was that they had acted throughout under the impulse of fear. Washington, Circuit Justice, put the issue to the jury in this way (26 Fed. Cas. at p. 210): "But the fear which could alone excuse them must be fear of death; such a fear as a man of ordinary fortitude and courage might justly yield to." Although the court limited the defence to acts done in fear of death, the underlying thinking appears to be the same. But, in any event, as Dr. McCall Smith comments, the specific requirement that the threat be one which would have had the effect of coercing a reasonable person "reinforces that it must be one of death or serious injury": Stair Memorial Encyclopaedia Vol. 7 (1995), paragraph 202.

[11] In the present case the Sheriff directed the jury that the defence of coercion had been properly raised by the appellant. He must therefore have taken the view that it was open to the jury, on the account given by the appellant, to hold that his will had been overcome and he had committed the assault and robbery as a result of threats from Cannon constituting immediate danger of death or serious bodily injury. I have to say that I am somewhat doubtful about that conclusion. One of the threats was to blow up the appellant's house and, as Mr. Shead conceded, Cannon could not have done that immediately since, on the appellant's account, Cannon was in the complainer's house at the time. The other was a less specific threat to hammer or kick the accused, if he did not hit the complainer. Even here, however, the appellant said that he thought that, if he had run away, Cannon would probably have caught up later on. This suggests that the appellant was really envisaging an attack in the future, albeit one which he could not ultimately avoid even if he ran away. It is perhaps because, on the appellant's narrative, the threats appear to lack the kind of immediacy which Hume envisages that the question of the appellant's reaction to the threats comes into prominence. Be that as it may, we must deal with the appeal on the basis that the danger embodied in the threats could properly be regarded as being sufficiently immediate to give rise to the defence.

[12] At first sight, it may seem strange that the Crown did not object to Mr. Macpherson's evidence, or at least to the aspect dealing with the appellant being particularly compliant, if the test to be applied in relation to the exculpatory defence of coercion was an objective test, referring to the resolution of a seventeen-year-old male of reasonable firmness. But, on reflection, one can see that, even assuming that this was the appropriate test, the evidence was properly admitted. So far as Mr. Macpherson's evidence as to the appellant's borderline mental handicap was concerned, the Sheriff directed the jury that they could have regard to it when considering whether he did genuinely believe that Cannon would severely assault him and blow up his house then and there. Arguably, at least, this goes further than using the evidence simply to support the credibility of the appellant as a witness - which would not be permissible. Furthermore, even if Mr. Macpherson's evidence as a whole would not have supported an exculpatory defence of coercion, it would have been relevant to mitigation. Indeed, it may well in fact have played a part in the jury's decision to add the rider that the appellant had committed the offence under pressure - and the rider was a factor to be taken into account by the Sheriff when considering punishment. The issue for this court is, accordingly, whether the Sheriff was correct to limit the use which the jury could make of Mr. Macpherson's evidence and, in particular, to direct them that the appellant's

[13] I have pointed out that the aspect of the Sheriff's direction which is in issue is not to be found in Hume's account of coercion by individuals in relation to particular crimes. On the other hand, Alison, Principles, p. 673 says that the defence of coercion may be available, not only in cases of insurrection, but also

This is Alison's gloss on an equivalent passage in Hume's account (Vol. 1, p. 51), where the point in Alison's proviso may, perhaps, lurk beneath the surface but is certainly not made expressly. Rather, I have the impression that, when dealing with coercion as a result of insurrection, mob violence and piracy, Hume envisages the circumstances as so extreme that the accused is helpless and resistance is not really possible. The need for the threat to be such as would overcome the resolution of an ordinarily constituted person finds no place in any of the editions of Macdonald's Criminal Law and seems to have entered our law in Lord Anderson's book on The Criminal Law of Scotland (1892, second edition, 1904), p. 16:

Lord Anderson cites no authority for this aspect of his statement of the law but it was adopted as correct by Lord Allanbridge in McCallum S.C.C.R. (Suppl.) at p. 170 and from there made its way into Lord Hunter's decision and charge in Thomson.

[14] A qualification of this kind is also vouched by authority in other jurisdictions. I have already quoted the direction in United States v. Haskell (paragraph 10 above). In Attorney-General v. Whelan [1934] IR 518 at p 526 Murnaghan J., giving the opinion of the Irish Court of Criminal Appeal, observed that it seemed to them that

In the English case R. v. Howe [1987] AC 417 at p. 426 D - E Lord Hailsham L.C. said that the definition of duress was correctly stated to contain an objective element which

In the same case ([1987] A.C. at pp. 458 D - 459 D) Lord Mackay of Clashfern, with whom all the other members of the House concurred, approved a passage from the opinion of Lord Lane L.C.J. in the Court of Appeal. In it Lord Lane had in turn approved directions by the trial judge to the effect that the test was whether the threat was of such gravity that it might well have caused a reasonable man, placed in the same situation as the defendant, to act as the defendant did and, further, that the jury should ask themselves "Would a sober person of reasonable firmness sharing the defendant's characteristics have responded to the threats by taking part in the killing...?" ([1986] Q.B. 626 at pp. 642 H - 643 B). Lord Mackay also approved the earlier observation of Lord Lane, when giving the judgment of the Court of Appeal (Criminal Division) in R. v. Graham (Paul) [1982] 1 WLR 294 at p. 300 D - H:

Similarly, in R. v. Martin (1989) 88 Cr App R 343 at p. 346 Simon Brown J., as he then was, said that, where the defence of duress of circumstances was before them, a jury should be directed to ask themselves whether

These passages make it plain that an objective test, referring to the response of a sober person of reasonable firmness, sharing the characteristics of the accused, forms part of the law of coercion or duress in England.

[15] In his discussion in Graham ([1982] 1 W.L.R. at pp. 298 H - 299 A) Lord Lane cited the section of the speech of Lord Wilberforce in Lynch v. D.P.P. [1975] AC 653 at p. 683 C - G where he approved a passage from the opinion of Rumpff J.A., as he then was, in the South African Appellate Division in S. v. Goliath 1972 (3) S.A. 1 (A) at pp. 24 H - 25 E. The point at issue was whether compulsion should be admitted as a defence to murder and the court surveyed a vast array of authorities from many jurisdictions. In South Africa judges and assessors, rather than juries, make the decisions on matters of fact. In the passage to which Lord Wilberforce referred, Rumpff J.A. made the point that the actings of an accused are judged according to objective standards and that more was never demanded of him than what was reasonable. By "reasonable" was meant what could be required of the ordinary average person ("die gewone deursnee-mens") in the particular circumstances. The authority of this aspect of Lord Wilberforce's speech is not affected by the fact that the decision in Lynch, so far as dealing with duress as a defence to murder, was subsequently overruled in Howe. I should add that, in an earlier passage in his opinion in Goliath (1972 (3) S.A. at p. 11 E - H), Rumpff J.A. commented that, in deciding what the accused could be required to do or not to do in particular circumstances, the judge and assessors had to put the fictional ordinary man in the position of the accused, subject to all the external circumstances ("die uitwendige omstandighede") to which the accused was subject and also in the position in which the accused was physically acting. The case of an ordinary adult would therefore require to be approached differently from that of an ordinary child, while an ordinary physically healthy person should also be treated differently from an ordinary but physically ill person. The approach laid down in this passage has been applied in later cases such as S. v. Alfeus 1979 (3) S.A. 145 (A) at p. 154 F per Rumpff C.J. and S. v. Bailey 1982 (3) S.A. 772 (A) at p. 795 H per Jansen J.A.

[16] In Canada also the defence of necessity includes a requirement that people should act in accordance with society's expectation of appropriate and normal resistance to pressure. See Perka v. R. [1984] 2 S.C.R. 232 at p. 259 d per Dickson J., as he then was. The Supreme Court recently confirmed this approach in R. v. Latimer 2001 SCC 1 at paragraph 33, unreported. Similarly in R. v. Hibbert [1995] 2 S.C.R. 973 at p. 1021, paragraph 59, Lamer C.J., speaking for the Supreme Court, held that

[17] In Moss v. Howdle, counsel for the appellant did not suggest that his actings should be judged by any other yardstick than that of the ordinary man finding himself in those circumstances. So the present issue did not require to be considered. Neither Mr. Shead nor the Advocate Depute cited any other Scottish authority on the point. But the opinion of the court delivered by Lord Prosser in Lord Advocate's Reference No. 1 of 2000 2001 S.L.T. 507 contains observations which appear to me to be of considerable importance for present purposes. The reference arose out of the decision of a sheriff to direct the jury to acquit the respondents of various charges of malicious damage to property used in relation to the deployment of Trident missiles. The respondents claimed that they had been entitled to damage the property in order to prevent or obstruct the Government's "crime" of deploying the missiles in breach of international law. The court referred to the speech of Lord Hailsham L.C. in Howe and to the opinion of Simon Brown J. in Martin and added (2001 S.L.T. at p. 516 K - 517 B):

Of course, in the Lord Advocate's Reference, on their analysis the respondents were not seeking to excuse a crime constituted by their actings but, rather, to assert that their actings were justified by the need to prevent a crime on the part of the Government. The passage from the court's opinion must be read in that context. For present purposes, it is important, however, because their Lordships apply the objective test as found in Howe and Martin, to the effect that the defence of duress of circumstances will be available only if a sober person of reasonable firmness, sharing the characteristics of the actor, would have responded as he did. In Moss the court proceeded on the basis that there was no relevant difference between coercion or duress per minas and duress of circumstances or necessity. The observations of the court in the Lord Advocate's Reference therefore indicate that the same objective test falls to be applied in a case of coercion, such as the present. Given the weight of authority to the same effect in other systems, and for the reasons that I go on to explain, I am satisfied that this test should indeed be applied in cases of coercion. Mr. Shead's first submission must therefore be rejected.

[18] His alternative submission was that, among "the characteristics" which should be taken into account in determining whether the appellant had acted under duress was that he is, in the words of Mr. Macpherson, "a highly compliant individual".

[19] In considering that submission, I begin by noting that the test which the law has adopted is, deliberately, objective. This is not inevitable. It would be quite possible, in theory at least, for a legal system to adopt a subjective approach in which the jury would simply have to ask themselves whether the Crown had satisfied them that the accused, with all his characteristics, had not acted under coercion. Or else, the law could prescribe a test which retained some element of objectivity but was to be applied to the accused with all his characteristics, including his various mental characteristics, whatever their origin. This would be similar to the test which the House of Lords have held should be applied in England and Wales in cases of provocation under Section 3 of the Homicide Act 1957: R. v. Smith (Morgan) [2001] 1 AC 146. And it may be that the legislature would some day choose to reform the law of coercion along one or other of these lines. But neither version represents the law as applied by Lord Hunter in Thomson or as stated in Howe or in the Lord Advocate's Reference.

[20] There are sound policy reasons why the law should be as set out in these cases. In the first place, the objective test described in these authorities goes some way to ensuring a consistency of approach in dealing with accused persons. It is also designed to keep the defence of coercion within fairly strict bounds. Coercion or compulsion is not a defence which the law regards with particular favour. Indeed Stephen saw it as posing a potential threat to the authority of the criminal law and was reluctant to recognise that it should operate at all to exculpate an accused, preferring to see it as no more than a basis for a proportional mitigation of the offender's punishment: History of the Criminal Law of England Vol. 2, pp. 106 - 108. His extreme view has not prevailed. Nevertheless, by applying the objective test the law ensures that people who are, by definition, responsible for their acts under our criminal law cannot use the defence to avoid the consequences of those acts, simply because of some failing in their personality or make-up which they should, in fact, be striving to master. Moreover, by setting an objective standard in this matter the law conforms to a pattern which is applied elsewhere - for instance, as Lord Lane noted in Graham (paragraph 14 above), in self-defence. See also, for example, R. v. Damascus 1965 (4) S.A. 598 (S.R.) at pp. 600 H - 601 D per Macdonald J. While cases involving coercion are relatively uncommon, cases involving self-defence occur frequently in our courts and there is nothing to suggest that juries have found the test difficult to apply in those cases. Similarly, there is nothing to suggest that a jury will have difficulty in understanding the issue which they have to determine in cases of coercion. Subject to what I say in the next paragraph, the test really requires them to decide what they, as a body of ordinary men and women, consider could reasonably have been expected of an ordinary sober person of reasonable firmness in the accused's situation, faced with danger in the shape of the threat uttered by the third party. That is precisely the kind of decision which our law has always considered can be taken, and is indeed best taken, by members of a jury who are representative of society.

[21] The test does not, however, apply a single standard to all cases. It recognises that what may reasonably be required of ordinary people will depend on their age: a child cannot be expected to react like an adult. Similarly, when faced with a threat from a more powerful man, a woman cannot be expected to react in the same way as a man who is as powerful as the third party. A person who is physically handicapped cannot be expected to react to certain threats in the same way as someone who is physically fit. On the other hand, the law rightly ignores any vulnerability which is self-induced by taking drink or drugs or by glue-sniffing. The fullest statement of the modern test therefore applies the standard of a sober person of reasonable firmness, sharing the characteristics of the actor. The submission for the appellant was that, just as the jury may take account of the characteristics which I have mentioned when applying that test, so also they should be able to take account of the appellant's tendency, as a result in part at least of his low I.Q., to be unusually compliant.

[22] In my view that step could not be taken without destroying the very test which the law prescribes. The objective test would become, to a very significant extent at least, subjective. Under the existing test, the starting point is that the jury must envisage a person of reasonable firmness. Reasonable firmness is, if you like, the hypothetical person's essential characteristic. Others may be added but that characteristic must remain. If, however, one were to add-in the characteristic of being unusually compliant, that would be inconsistent with, would indeed annihilate, the essential characteristic of reasonable firmness. It would be impossible for a jury sensibly to ask themselves how an ordinary person of reasonable firmness, but who was unusually compliant, would have reacted to a threat. This point has been emphasised in various English cases, to the analysis in which I would respectfully refer. In the Court of Appeal in R. v. Hurst [1995] 1 Cr. App. R. 82 at p. 91 A - B Beldam L.J. commented:

See also R. v. Hegarty [1994] Crim. L. R. 353 and R. v. Horne [1994] Crim. L.R. 584. In R. v. Bowen [1997] 1 WLR 372 at p. 379 C - G Stuart-Smith L.J., giving the opinion of the Court of Appeal, examined the authorities and said:

As these passages from the English authorities show, the very logic of the test which the jury are required to apply in considering a defence of duress requires them to ignore the fact that a particular accused is more than normally pliable, vulnerable, timid or susceptible to threats, except where that characteristic results from some mental illness, mental impairment or recognised psychiatric condition. The approach of the South African Appellate Division, to which I referred in paragraph 15, would appear to be similar.

[23] It is sometimes said - for example, by Lord Lane in Graham (paragraph 14 above) - that a common approach falls to be applied in cases of duress and provocation. For that reason, in the course of the argument in this appeal the court drew to counsel's attention the decision of the House of Lords in R. v. Smith (Morgan). By a narrow majority their Lordships held that, in determining under Section 3 of the Homicide Act 1957 whether the provocation offered to the defendant was enough to make a reasonable man do what the defendant did, the jury were required to ask whether the degree of self-control exercised by the defendant was that which a reasonable person with his characteristics would have exercised. Both when determining whether the defendant was in fact provoked and when determining whether the objective element of provocation was satisfied, the jury were to take into account all the particular characteristics of the defendant, including his mental characteristics (whether temporary or permanent). See, for instance, [2001] 1 A.C. at p. 168 E - H per Lord Hoffmann. In so deciding, their Lordships rejected the argument that, by taking account of all the defendant's characteristics, the jury would in effect be applying a subjective rather than an objective test. In other words, they rejected the kind of argument that is accepted in Hurst, Bowen and similar authorities on duress. In Drury v. H. M. Advocate 2 February 2001, unreported, a bench of Five Judges of this court, dealing with a case of provocation, referred to the speeches in Smith but left this particular matter open.

[24] In considering the possible relevance of their Lordships' decision for present purposes, I note two points in particular.

[25] In this case we are concerned with the exculpatory defence of duress: where it applies, the accused falls to be acquitted. In Smith, on the other hand, the House of Lords were dealing with the defence of provocation in a case of homicide where the defence, if successful, could not lead to acquittal: the jury would find the accused guilty of manslaughter rather than of murder. As the Advocate Depute pointed out, for Lord Clyde, with whom Lord Slynn and Lord Hoffmann expressed their agreement, this was a matter of significance ([2001] A.C. at p. 179 E - F):

I can readily see that, when the court is concerned with a matter of punishment, it requires to consider all of the relevant facts relating to the accused, which may include all the various aspects of his make-up that affected his conduct in the particular circumstances. And, as I indicated in paragraph 12, even in a case of coercion, evidence relating to those matters may be led before the jury so that the accused can have the benefit of their view of the facts for the purposes of mitigation. But the mere fact that all these considerations may be relevant for the purpose of determining the basis for punishment does not show that they are equally relevant for the purpose of deciding whether the accused should be acquitted on the ground of coercion or duress. As the authorities show, it is a perfectly tenable view - and indeed the view which has so far been adopted by the British courts - that for this purpose it is proper to apply what is basically, and deliberately, an objective test, in which only certain characteristics of the accused are taken into account.

[26] Secondly, the House of Lords were concerned with the application of Section 3 of the Homicide Act 1957:

Not only does that provision not apply in Scotland but, more significantly, it made an important change in the role of the jury in cases of provocation in England and Wales - a change which makes that role very different from the role of a Scottish jury dealing with such cases. As Lord Hoffmann observed ([2001] 1 A.C. at p. 157 G - 158 A):

In Scotland, by contrast, a trial judge is expected to give appropriate directions withdrawing the issue of provocation from the jury's consideration if there is no basis at all for the point in the evidence. See, for instance, Parr v. H. M. Advocate 1991 J.C. 39 at p. 48 per Lord Justice General Hope and Miller and Denovan v. H. M. Advocate Note 1991 J.C. 48 at p. 52 per Lord Justice General Clyde. So far as Lord Hoffmann's second point is concerned, Scots law continues to restrict the kinds of acts which can be considered as amounting to provocation. I refer generally to the opinions in Drury v. H. M. Advocate.

[27] The importance, for the decision of the majority in Smith, of the role of the jury under Section 3 of the Homicide Act can be detected in all their speeches and is not to be under-estimated. For instance, at one point ([2001] 1 A.C. 166 F - H) Lord Hoffmann refers to the concluding sentence of the speech of Lord Diplock in R. v. Camplin [1978] AC 705 at p. 718 where he had summed up why he thought that it would be wrong to direct the jury that they were not entitled to take Camplin's youth into account. Lord Hoffmann explained:

In other words, Lord Hoffmann considered it to be inconsistent with the express wording of Section 3 for the jury to be directed that, in determining the question of provocation, they should leave any characteristic of the accused out of account.

[28] On the other hand, Lord Hoffmann emphasised that Section 3 simply meant that the judge could not exclude any characteristic of the accused from the jury's consideration of provocation. It did not follow that the jury required to take every characteristic into account. The judge should be able simply to tell the jury that the question whether the accused's behaviour fell below the standard which should reasonably have been expected of the accused was a matter entirely for them. The judge should not be obliged to let the jury imagine that the law now regarded anything whatever which caused loss of self-control (whether an external event or a personal characteristic of the accused) as necessarily being an acceptable reason for loss of self-control. See [2001] 1 A.C. at p. 171 G - H. Lord Hoffmann recognised, however, that there was a danger that, on this approach, a jury would find provocation on inappropriate grounds. But, in his view, by enacting Section 3 Parliament had considered that risk to be less likely to cause injustice than confining the jury within the rules of law which had been developed about the notional characteristics of the reasonable man. See [2001] 1 A.C. at p. 171 B - C. So far as duress or coercion is concerned, however, Parliament has not decided, either in England or in Scotland, that the risks should be balanced in this way. It follows that I do not regard the decision of the House of Lords in Smith as indicating that we should depart from the test for coercion that is laid down in the authorities to which I have referred. I note that in Smith their Lordships did not discuss the duress cases. This may suggest that they, too, saw no necessary connexion between the tests to be applied in the two spheres.

[29] That being so, I consider that it is proper for juries to continue to apply the objective test, as established by the authorities, when deciding whether an accused should be acquitted on the ground of coercion. In short, they should consider whether an ordinary sober person of reasonable firmness, sharing the characteristics of the accused, would have responded as the accused did. Therefore, in a case where the accused lacks reasonable firmness, the jury must disregard that particular characteristic but have regard to his other characteristics. At the same time I bear firmly in mind that the judge is entitled to have regard to all the accused's characteristics in determining what punishment, if any, is appropriate in the particular circumstances. That appears to me to be in line with the reasoning of Lord Clyde in the passage which I have quoted in paragraph 25.

[30] How, then, should the established test be applied in this case? In the end, Mr. Shead submitted that, on the evidence of Mr. Macpherson, it would have been open to the jury, applying the established test, to hold that the appellant suffered from "mental impairment" - in the form of borderline mental handicap - which made him more susceptible to pressure and threats. In other words, the appellant would fall within the fifth category envisaged by the Court of Appeal in Bowen (paragraph 22 above). I note, however, that in Bowen the appellant had an I.Q. of 68, somewhat lower than the appellant's, and that the Court of Appeal regarded this as being "short of mental impairment or mental defectiveness" ([1997] 1 W.L.R. at p. 380 C - D). It may seem tempting, especially where Mr. Macpherson describes the appellant as being "on the borderline mental handicapped range", to sweep the appellant into the class of those suffering from mental impairment. But, in my view, it would be wrong so to do. The significance of such a step can be judged by noticing that, according to Mr. Macpherson, so far as intelligence is concerned, the appellant is in the bottom four per cent of the general population. If that percentage is applied to the British population as a whole, roughly two million people will be included within that category. Similarly, even if the appellant's low I.Q. contributes to his tendency to be compliant, on Mr. Macpherson's evidence that tendency puts him into a class that includes ten per cent of the population - which would approximate to five million people in Britain. In these circumstances, even though there is evidence - as there was not in Bowen - linking the appellant's tendency to be compliant with his low intelligence, I consider that he should not be treated as falling within the fifth category identified by the Court of Appeal. Rather, he should be treated as falling within the first category. In other words, the appellant's special characteristic was one which the Sheriff correctly directed the jury that they should not take into account when considering matters of conviction. But, equally, it was a factor to which the Sheriff was entitled to have regard when determining the appropriate sentence. I am therefore satisfied that the Sheriff directed the jury properly as to the approach which they should adopt in considering the appellant's special defence of coercion.

[31] For these reasons the appellant's appeal against conviction on the two grounds contained in his Note of Appeal must be refused. The appellant was also granted leave to appeal against sentence and we must continue the proceedings in order to deal with that matter. When the appeal came on for hearing on 24 May we gave Mr. Shead leave to lodge a supplementary ground of appeal alleging that the appellant's rights under Article 6 of the European Convention on Human Rights and Fundamental Freedoms had been breached by a delay in disposing of the appeal. That matter will also fall to be considered.

I respectfully agree with the Opinion delivered by your Lordship in the Chair and have nothing to add.

[1] I have had the opportunity of reading the Opinion of your Lordship in the Chair and I am in full agreement with it.

[2] In my opinion the Sheriff's directions in this particular case were in accordance with the Law of Scotland and consistent with the evidence before him. Accordingly, the appeal against conviction on the grounds argued before us falls to be refused.