Scottish High Court of Justiciary Decisons

LORD HUNTER'S OPINION .—At the outset of the present trial counsel for Thomson, the first panel, sought leave to have received late what was termed a "special defence of coercion." In my opinion the document did not fall within the category of special defences recognised by the criminal law and practice of Scotland, and I held that the attempt to lodge a novel special defence of this nature was incompetent. Although I was not treated at that stage to a full, or indeed any, citation of authority, the course which I adopted appeared to me to be consistent with the decision in H.M. Advocate v. Cunningham 1963 J.C. 80, and with what was said in the opinion of the Lord Justice-General in that case at page 83 where he observed that the categories of special defences are well known and have long been recognised in our law. I also had in mind certain observations in the opinion of the Court in Lambie v. H. M. Advocate 1973 J.C. 53, particularly at pages 57 and 59, which suggest that the category of special defences consist of alibi, self-defence and incrimination together with insanity, the last of which stands in a different position from the others in respect of onus of proof. No authority was cited to me, and I know of none, which suggests that a "special defence of coercion" is either well known or has long been recognised in our law.

When dealing with the question of competency I was aware of H.M. Advocate v. Peters and Others (1969) 33 J.C.L. 209, and also of the unreported cases of H.M. Advocate v. Docherty and Others, unrep. 3rd June 1976, and H.M. Advocate v. M'Callum, unrep. 19th May 1977. I have subsequently been referred to Sayers and Others v. H.M. Advocate 1981 SCCR 312, and particularly to the charge to the jury by the trial judge in that case at pages 318 to 320. It appears that in H.M. Advocate v. Peters and Others the trial judge allowed a "special defence of coercion" to be received "in hoc statu", although according to the report his Lordship had distinctly stated that he should certainly not be held to be expressing the opinion that in any ordinary case a special defence in such terms would be competent and allowed to go to the jury. I am, with respect, unable to understand how the course of admitting a special defence in hoc statu could competently be adopted at a time when it was the invariable practice for special defences to be read to the jury immediately after they had been sworn and before any evidence was led. The practice of reading special defences to the jury still prevails today, although I understand there was some natural hesitancy about continuing to follow the practice for a period after the decision in Lambie v. H.M. Advocate cit. supra . I note in passing that there have been similar doubts about whether notices of incrimination under the amended provisions of section 82 of the Criminal Procedure (Scotland) Act 1975 should, like special defences, be read to the jury, although I understand that it has in general become the practice for this to be done. It was done in the present case, both panels having lodged such notices.

It is not clear from the charge of the trial judge in H.M. Advocate v. Docherty and Others whether a special defence based on coercion had been lodged or read to the jury in that case. I infer from the charge of the trial judge in H.M. Advocate v. M'Callum, at pp. 13 to 23 of the copy with which I have been provided, that a special defence of incrimination lodged in that case had contained a reference to coercion, but the matter appears to have been treated simply as a matter of fair notice to the Crown by the defence. While I agree that a case can be made for such fair notice to be given by the defence to the Crown, and also in appropriate circumstances to co-accused, when it is proposed to lead evidence of coercion on behalf of a panel, I was not satisfied that this could competently take the form of a "special defence" such as that which was attempted in the present case. For completeness I should add that it does not appear from the report of Sayers and Others v. H.M. Advocate cit. supra that there was any special defence in that case in which the matter of coercion was referred to, although the question of coercion was raised and considered in relation to the defence of one of the accused at the trial. In the circumstances the document lodged on behalf of the first panel in the present case was not read to the jury, although it was made clear that if it was proposed to lead evidence relating to coercion at a later stage or to seek directions on the matter such questions could and would be dealt with as they arose.

I have no doubt that evidence can in appropriate circumstances be led on behalf of an accused person to the effect that he had acted under coercion. There was no suggestion to the contrary by the High Court of Justiciary in the opinion delivered on 21st October 1976 in the appeal against conviction by one of the accused in H.M. Advocate v. Docherty and Others cit. supra (see page 2 of the opinion of the Court). Such evidence may, in my opinion, sound in mitigation and in some circumstances might justify a jury in appending a rider or recommendation to their verdict. In some respects the position may have analogies to provocation, although I would, until the question arises for decision, wish distinctly to reserve my opinion as to whether coercion could ever or in any circumstances affect the verdict in a case of murder. In the course of the present trial evidence has been led on behalf of the first accused, without objection from the Crown, which might, if accepted by the jury, suggest that he had, in taking part in certain stages of the criminal enterprise with which charge (1) in the indictment is concerned, been under some degree of coercion, using the word in a wide sense, by another person who took part in that enterprise. Such evidence might, as I have indicated, sound in mitigation, and it might be given appropriate weight in connection with any sentence imposed if the circumstances were considered to render that course appropriate.

The question however has now arisen sharply as to the nature of the directions which should be given to the jury on the matter of coercion in relation to the position of the first panel, apart from considerations merely affecting mitigation. In particular, the question has arisen whether, if the jury were to accept the evidence led on behalf of the first panel, a verdict of acquittal would be open to them on the ground of coercion. It is clearly desirable that as the present case has developed counsel should, so far as practicable, be aware of my views on the matter before they address the jury, and I gathered that such a course was acceptable on both sides of the bar. I accordingly heard argument on the question at this stage. Now, I should say immediately, in order to get the matter out of the way, that allegations of coercion may in my opinion be relevant as part of the narrative in certain circumstances where a panel seeks to incriminate either a third party or a co-accused: for example, an accused person might possibly in leading up to and supporting a special defence or notice of incrimination say that he was recruited to a criminal enterprise by means of threats involving danger uttered by one of the perpetrators. However, on the question whether an accused can obtain an acquittal solely on the ground of coercion I have much greater difficulty. I leave out of account situations where evil intent is manifestly absent—for example, if a person has been compelled by sheer physical force to place his hand on a weapon with which others have inflicted a wound on a victim. I also leave out of account, for the purposes of the present case, situations which may arise during times of war, rebellion or great civil and public commotion when the ordinary forces of law and order may have lost control or be entirely absent. In these special circumstances there is a good deal of old authority, relating usually to times of great public disorder in Scotland, which would have to be taken into consideration. The position when law and order have not been so displaced but in general prevail is, in my opinion, different and, speaking for myself, I doubt whether—at any rate in the case of very serious crimes—it is sound legal policy ever to admit coercion as a full defence leading, if established, to acquittal. Moreover, the absence of precedent for a special defence of coercion suggests a degree of uncertainty in our law as to whether in normal times a defence of coercion could lead to a verdict of not guilty: H.M. Advocate v. Cunningham cit. supra, per L.J.-G. Clyde at page 83. However, it must in my opinion be accepted that the great authority of Hume recognises that even in times when law and order in general prevails, and even in the case of a crime as serious as armed robbery, such a defence may, although subject to very strict qualifications, be upheld. I refer in particular to the passage in Hume on Crimes, i, 53, where the writer, after referring at pages 51 and 52 to 53 to the case of James Graham who claimed that he had been forced by Rob Roy and his gang to take part in an armed robbery; continued as follows: [His Lordship narrated the passage, which is given in the opinion of the Court, and continued]: Hume does not, in relation to the case of James Graham, lay stress on the fact that Graham had claimed to be a servant under the command of Rob Roy, and in any event the passage which I have quoted appears from its terms to be of general application.

I would therefore be prepared in charging a jury in a case of armed robbery to accept the law so stated, but I would be disposed to make very clear the strict limits within which coercion would in such a case provide a complete defence and to emphasise the qualifications which emerge from the passage quoted. I say "in such a case" because Hume in the passage referred to expressly applied these very strict qualifications to the defence of coercion "in the case of a trial for any atrocious crime", which robbery undoubtedly is. It may be noted that the danger must be a danger of death or great bodily harm, and that it must be immediate. As the trial Judge in H.M. Advocate v. M'Callum cit. supra pointed out in his charge to the jury, under reference to Anderson: Criminal Law of Scotland, 2nd ed., p. 16, the threats must have had reference to present, not to future, injury. Moreover, the threats used must, to quote the passage in Anderson, have been "of such a nature as to overcome the resolution of an ordinarily constituted person of the same age and sex as the accused." This is an objective test related to an ordinary reasonable person. Heroic qualities are not required by the law in this context, nor is allowance made for excessive cowardice or timidity. It is a matter of commonsense suitable for decision by a jury. It must also be observed that the will and resolution of the accused must in fact have been overborne and overcome by the threats and the danger. He must have found himself entangled in a share of the criminal enterprise, to use Hume's words (i, 52), "entirely against his will." There must have been "an inability to resist the violence." Moreover, it is difficult for an accused person to avail himself of the defence of coercion in the case of an atrocious crime, such as armed robbery, if he has taken "a very active part in the enterprise" rather than "a backward and inferior part in the perpetration." An additional qualification suggested by Hume is that there must be "a disclosure of the fact, as well as restitution of the spoil, on the first safe and convenient occasion." The learned Advocate-Depute did not maintain that a defence of coercion leading to an acquittal was necessarily excluded merely because this particular qualification was not satisfied, since in a case of armed robbery, such as the present, it relates to a period subsequent to the perpetration of the crime. This may be so, although, in my opinion, the qualification may be very relevant to the question whether the will and resolution of the person said to have been coerced were in fact overborne by the immediate danger or whether an inference of willing, albeit in some circumstances reluctant, participation in the crime can be made from that person's subsequent actions. This makes it very necessary to know whether, and if so when, an accused person has made reports and disclosure on these matters to the authorities and, in particular, to the police. I am further of opinion, having regard to the principle lying behind the foregoing qualifications, that if the accused has joined an association where such threats from associates and the dangers arising from them are reasonably to be expected a defence of coercion by such associates will not avail him. In this connection, I refer to the observations of Lord Morris of Borth-y-Gest in D.P.P. v. Lynch [1975] AC 653, at p. 670, although I do not think that this particular aspect of the problem arises on any of the possible views of the facts in the present case.

It will thus be seen that a defence of coercion must in the end depend on the view which a jury suitably directed takes of the evidence, unless there is no evidence at all to bring the case within the principles which I have endeavoured to formulate. In general, also, the defence may involve the making by the jury of value judgments which may raise questions of degree. In particular, it is clear that the criminal act committed by the accused must be in some reasonable balance with the threats and danger which confronted him. Such considerations appear to lie, for example, behind Hume's qualification that in the case of an atrocious crime the accused must not have taken "a very active part in the enterprise." It may also help to explain some apparent conflicts of decisions on duress in other jurisdictions, particularly in cases of murder. So far as concerns such other jurisdictions, I was referred to D.P.P. v. Lynch cit. supra and R. v. Hudson [1971] 2 QB 202. Unfortunately, the official reports of these cases were not available to me in Court. I had to rely on abbreviated versions in text books. I must confess that I prefer on these issues to rest myself on Scottish authority, and particularly that of Hume. Indeed, R. v. Hudson cit. supra appears to me to give greater scope for a defence of duress than I would be inclined to give to a defence of coercion in Scots law, since it does not seem to lay the same stress as our law does on the qualification that the danger must be immediate. In my opinion the door of the defence of coercion should not be opened too wide since, as Lord Morris of Borth-y-Gest pointed out in D.P.P. v. Lynch cit. supra at page 670, "duress must never be allowed to be the easy answer of those who can devise no other explanation of their conduct." For the foregoing reasons, amongst others, I would prefer the approach of the trial Judge in H.M. Advocate v. M'Callum, who founded himself firmly on Scottish authority, to the more general treatment of the question of coercion in H.M. Advocate v. Docherty and Others and Sayers and Others v. H.M. Advocate . However, each case must depend on its own circumstances and it is plain enough that all the Scottish authorities are based on the principle that a defence of coercion, in order to be successful, requires that the danger must be immediate and that the will and resolution of the accused must have been overborne by threats which he believed would be carried out so that he was not at the material time acting of his own free will.

The learned Advocate-Depute submitted that, even taking the evidence of the first panel at its highest, there was not in the present case any evidence of an immediate danger of death or great bodily harm such as is required by our law. Certainly, the evidence of such immediate danger is thin, even on the first panel's own showing. Counsel for the first accused has, however, persuaded me that it would in this instance be too strong a measure to withdraw coercion from the consideration of the jury. There are, in my opinion, passages in the examination-in-chief and cross-examination of the first accused which, if his evidence of what happened were to be accepted as true, might justify acquittal. That would be so whether the evidence was corroborated or not. The evidence of the first panel is to the effect that a shot was discharged into his hand by one of the men in the van that he was driving, and that this happened at the locus of the crime and was followed by threats some of which admittedly, according to his own account, related to the future. But the first accused did appear at one or two points to go the length of saying, or at least clearly implying, that in the event of his disobeying the orders given there was an immediate danger of him being shot again and suffering further injury should the men who were carrying out the robbery emerge from the sorting office. I have accordingly concluded, although not without considerable hesitation, that the issue of coercion which has been raised is one which should be left with the jury, to whom I propose to give directions along the lines indicated.

Thomson was convicted and sentenced to a term of imprisonment. He appealed against both conviction and sentence. The ground of appeal against conviction was as follows:—

"The learned trial judge misdirected the jury in law as to the circumstances which might validly constitute a defence of coercion. In particular he erred in law in directing them that a threat stretching into the future would not be sufficient to constitute such a defence. His misdirections were of such a nature that there are substantial grounds for apprehending that a miscarriage of justice has taken place."

The case was heard before the High Court of Justiciary on 6th July 1983.

At advising on 25th July 1983 the opinion of the Court was delivered by the Lord Justice-Clerk.

LORD JUSTICE-CLERK (Wheatley).—This appeal raises the question of the extent to which a defence of "coercion" plays a part in the criminal law of Scotland. The appellant with another person was convicted inter alia of a charge of assault involving the use of firearms and robbery. Various defences were proponed by the appellant but this appeal is only concerned with the one that alleged that he had participated in the offence as a result of coercion.

In directing the jury on this defence the trial judge, Lord Hunter, read to them the passage from Hume on Crimes, i, p. 53 which deals with this matter, interposing some observations of his own. This is what he said:

"‘But generally, and with relation to the ordinary condition of a well-regulated society, where every man is under the shield of the law, and has the means of resorting to that protection, this is at least somewhat a difficult plea’—this being coercion—‘and can hardly be serviceable in the case of a trial for any atrocious crime, unless it have the support of these qualifications:’—I would ask you to note them, ladies and gentlemen—‘an immediate danger of death or great bodily harm; an inability to resist the violence; a backward and an inferior part in the perpetration;’—and he adds ‘and a disclosure of the fact, as well as restitution of the spoil, on the first safe and convenient occasion.’ Then he continues: ‘For if the pannel’—that is the accused, because we always used to call the accused the panel—‘For if the pannel take a very active part in the enterprise, or conceal the fact, and detain his share of the profit, when restored to a state of freedom, either of these replies will serve in a great measure to elide his defence.’"

Lord Hunter went on to say:

"Now, ladies and gentlemen, that is the classical statement of the Scottish criminal law on this matter where law and order, as we hope in 1983, prevails. Now, ladies and gentlemen, I would wish to make it very clear that there are strict limits, as the learned author has said, within which coercion in a case of robbery—which is undoubtedly an atrocious crime—would be available as a complete defence, and I would also emphasise the qualifications which emerged from the passage which I quoted. Ladies and gentlemen, you will have observed that the danger must be a danger of death or great bodily harm, and the important matter I would ask you to note in the present case is that it must be immediate; that is, a threat stretching into the future would not be good enough even if you assume that such a threat had been made. Ladies and gentlemen, I would also stress in addition to the fact that the threats—if threats there were—must have had reference to present, not to future injury, that they must be such threats as would overcome the resolution of an ordinarily constituted person of the same age and sex of the accused—in this case, the first accused who is taking this defence. That is an objective test and it is really related to an ordinary reasonable person of the sex of the accused. He doesn't need to be a hero; on the other hand, the law does not make allowance for excessive cowardice or timidity. Would you also note that if a defence of this sort as a complete defence leading to an acquittal is to succeed the will and resolution of the accused must, in fact, have been overborne and overcome by the threats and the danger. He must have found himself, in fact, entangled in a share of the criminal enterprise entirely against his will. There must have been, as is said in the passage which I read to you, an inability to resist violence. It is an important consideration as to whether the accused person, in the view of the jury, took a very active part in the enterprise—to use Hume's word—or whether on the other hand he took a backward and inferior part in the perpetration. That is a question of degree; it is for you to consider whether the driver of a getaway vehicle in a situation like this takes an active part in the enterprise or a backward part. It is, you may think, quite an important part of the enterprise of an armed robbery of this nature, but it is a matter essentially for you. Ladies and gentlemen, the final qualification that I have read to you, you will probably recollect, was that a disclosure of the fact as well as restitution of the spoil is made on the first safe and convenient occasion. Now, ladies and gentlemen, the Crown have not submitted in this case that that standing by itself would necessarily make the defence of coercion non-available but you will no doubt appreciate that depending on the view a jury may take, a failure to report the facts to the authorities, and in particular, to the police, or a failure to return the spoils, as the author calls it—the stolen property—may be very important when a jury are considering whether in fact the will of the accused who takes this defence has been overborne by the threats and the danger, because to keep things secret for a period after the immediate danger has passed and to retain the stolen property may—and it is a matter for the jury to consider—indicate not something entirely against the will of the accused but something in which he has participated, although it may be with some reluctance, depending on what view is taken of the evidence."

The basic ground of appeal advanced by the appellant's counsel was:

"Misdirection by the trial judge of the defence of coercion in directing the jury that the danger must be immediate and the threat has to be of present and not future violence."

As a corollary of that, it was submitted, where present violence is combined with threats of future violence it is for the jury to decide whether these present and future threats combine to produce the legal threat of violence.

It has to be noted that what the trial judge was dealing with was what constituted a complete defence of coercion in what was undoubtedly, in Hume's words, an atrocious crime. It was in that situation that he directed the jury that the danger must be immediate. In the result he allowed the defence of coercion to go to the jury, restricted to immediate danger to life in a threatened situation because there was some evidence from the appellant to that effect.

As the judge had directed the jury in the words of Hume, counsel for the appellant was in a difficulty. He did not wish to argue the bold proposition that Hume was wrong, although if all else failed he was prepared to do so. His main line was that the trial judge had construed too strictly what Hume had said, and that the passage in Hume was not as rigid as the judge had made out. He submitted that Hume was speculating and was at the best laying down guidelines rather than enunciating legal principles. In the last resort he was prepared to argue that Hume was wrong through lack of clarity.

Our views on the passage from Hume under consideration are these. The passage has to be looked at in its context. The immediately preceding passage deals with the case of James Graham who claimed that he had been forced by Rob Roy and his gang to take part in an armed robbery, and this was in an age of lawlessness when recourse to the forces of law and order for protection was often not available. By contrast Humeset out to define the law of coercion in the context of the type of society in which we live today. He accordingly starts by saying:

"But generally, and with relation to the ordinary condition of a well-regulated society, where every man is under the shield of the law, and has the means of resorting to that protection, this (i.e. coercion) is at least somewhat a difficult plea."

This, in our view, explains the thinking underlying Hume's subsequent words, and is the key to the use of the word "immediate." What he was saying was that it is only where, following threats, there is an immediate danger of violence, in whatever form it takes, that the defence of coercion can be entertained, and even then only if there is an inability to resist or avoid that immediate danger. If there is time and opportunity to seek and obtain the shield of the law in a well-regulated society, then recourse should be made to it, and if it is not then the defence of coercion is not open. It is the danger which has to be "immediate" not just the threat. It will be a question of circumstances in each case whether the conditions permitting the invocation of that defence have been satisfied. "Immediate danger" may have to be construed in the circumstances in which it is threatened, but clearly if there is the opportunity to run away or to seek the protection of the forces of law and order before the crime is committed, then the accused cannot claim to have been coerced. Hume recognised that the rule could not be made absolute because of the imponderable situations which might arise in the country's history. Hence the qualifications, prefaced with "generally, and with relation to the ordinary condition of a well-regulated society." We have already dealt with the first two of these, namely immediate danger and inability to resist violence. With regard to the third, a backward and inferior part in the perpetration, we consider that the part which is taken in the perpetration, which can take place in a whole variety of ways and degrees, is simply one factor in the amalgam of factors which may point to the accused's voluntary or coerced conduct. If a man opens a safe, which is the major feature of the crime, but only does so because he has a revolver pointed at his head and he is told that his head will be blown off if he does not open it, it is difficult to see why the defence is not open to him because he played a major and not a backward or inferior part in the perpetration of the crime. So far as the fourth is concerned, disclosure of the fact as well as the restitution of the spoil on the first safe and convenient occasion, that is not something which could positively affirm or disprove that the accused was acting under coercion. Rather it is a test of whether such actings are or are not consistent with his proponed defence of coercion. This seems clearly what was meant when regard is had to the passage which follows:

"For if the pannel take a very active part in the enterprise, or conceal the fact, and detain his share of the profit, when restored to a state of freedom, either of these replies will serve in a great measure to elide his defence."

The underlining is ours.

In so expressing himself Hume was setting down in characteristic manner what he conceived to be the criminal law of Scotland on this subject. He was plainly not seeking to lay down any absolute rule, but he was adumbrating the very strict conditions under which a defence of this nature could be sustained. He obviously appreciated the great danger to the proper administration of justice if a facile defence of this nature was not subjected to strict control. The four "qualifications" to which he refers are tests of the validity of such a defence. The first two are conditions to be satisfied before the defence gets off the ground. It is only if it does get off the ground that the other two tests come into play as measures of the accused's credibility and reliability on the issue of the defence. So far as the passage quoted is concerned, it only remains for us to say that Hume was not rejecting the defence of coercion as incompetent; he was only seeking to set out the very strict confines within which it could be sustained. This is underlined by his use of such phrases as "somewhat a difficult plea" and "can hardly be serviceable … unless …" The advocate-depute seemed to have a point when he argued that "hardly" there had to be read as meaning "surely not."

As counsel for the appellant was not prepared to accept these limitations on the defence of coercion, and was prepared to argue that Hume was unclear or indeed wrong in what he said, we feel it incumbent on us in the light of what we have already said to repudiate these assertions. This may seem a needless exercise to many who have fled to Hume as the fount of knowledge on the criminal law of Scotland when judicial pronouncements have appeared to be conflicting or unclear. A defence of coercion is recognised in the law of Scotland. Doubts have been expressed on whether it extends to murder cases, but that does not arise here and we express no opinion on that point. Hume restricts it to "atrocious crimes", and whether a particular crime falls into that category will depend not only on the nature of the crime but on its attendant circumstances. A fine balance may have to be struck between the nature of the danger threatened and the seriousness of the crime, calling for a value judgment. The facile manner in which it could be invoked, and the consequential effects on the proper and fair administration of justice if its use was unfettered, demonstrate clearly the need for the restrictive conditions and considerations which Hume saw fit to impose. As previously noted, all this has to be considered against the background of the ordinary condition of a well-regulated society where recourse is available to the forces of law and order for protection. If that situation does not for any reason exist, then different considerations may have to apply, but we are dealing here with the ordinary position. In the light of the examination of the passage in Hume which we have made we are satisfied that it represents the law of Scotland at the present time when it states that the defence of coercion is normally only open when it is based on present danger from present threats, and is properly tested by the answers to the four qualifications posed. In saying this we are conscious that even in the ordinary condition of a well-regulated society there may be circumstances where a person is exposed to a threat of violence to himself or a third party or even the security of the state from which he cannot be protected by the forces of law and order and which he is not in a position to resist. If such a situation arose it would have to be determined on its facts, and no profit can be gained from an exercise in hypothetical cases.

It is only but right to point out that our attention was drawn to four Scottish cases and two English ones where the law of coercion or duress played a part. The first of the Scottish cases was H.M. Advocate v. Peters, Garvie and Tevendale (November 1968, unreported). There a special defence of coercion was received under reservation, but it was not allowed to go to the jury through lack of evidence to support it, and nothing can be gained from that case in relation to the current issue. The second was the case of H.M. Advocate v. Docherty & Others (3rd June 1976, unreported). The trial judge (Lord Keith) in his charge to the jury said that a defence of coercion was open to an accused "when his will has been overcome by a threat to him, that he had reason to believe—and believed—it would be carried out." At a later stage he repeated this general direction but added "or threats to his mother." It was said by counsel for the appellant here that this was at least a case of a mixture of present and future threats. Even if this be so, and the judge's charge does not disclose whether it is, the direction in law was given without reference to what Hume had said, and we cannot find in the generality of the direction anything to alter our view on the law. The third of these cases was H.M. Advocate v. John M'Callum (19th May 1977, unreported). In that case the trial judge, Lord Allanbridge, cited to the jury the passage in Hume supra and laid emphasis on the fact that it was the immediate and not the future threats which they had to look at. To buttress this he quoted a passage from Anderson's Criminal Law (2nd ed.), p. 16:

"The threats must have had reference to present, not to future injury."

In answer to a question from a juror whether all four of Hume's tests (sic)should be satisfied the judge replied that the jury had to consider the whole evidence and apply the four tests. The fourth case was Sayers & Others v. H.M. Advocate 1981 SCCR 312. The defence of coercion was advanced in that case and was dealt with by the trial judge. Although the case was appealed to the Appeal Court it was not on this point. The trial judge, Lord Ross, having given the general directions on coercion to the jury, referred them to a number of occasions when threats were uttered. It would appear that these related either to the first of Hume's qualifications or to the fourth. The point of immediate danger from an immediate threat was not canvassed, and once again nothing emerges from the case to support the arguments on one side or the other.

From this review of the Scottish cases cited to us, the case of M'Callum supports the view taken by Lord Hunter in the present case while the others do not really advance the argument one way or the other, as the point at issue here was not raised and expressly dealt with. Only in the passage in Anderson is there a correlation between immediate threat and immediate danger to be found.

Reference was made by counsel for the appellant to two English cases which dealt with the English term "duress." These were R. v. Hudson [1971] 2 QB 202 and D.P.P. v. Lynch [1975] AC 653. These cases were naturally cited not as binding authorities on us but as cases of persuasive influence. Many of the English cases dealing with the law of duress were canvassed and discussed in Lynch and we confine ourselves to a consideration of the broad matters of identity and difference between them and the Hume view. Both agree that it is a competent defence in limited circumstances. There is mutual agreement of the dangers of a facile resort to such a type of defence and for the need to have strict limits monitoring its application. There is unanimity of view that coercion or duress must have dominated the mind at the time of the act and that it was by reason of that domination that the act was committed. It has been said that the duress must be real and effective at the time when the decision to commit the act was made. Where the difference creeps in is in the relationship between the threats and the danger. The English cases seem to keep the emphasis on the threat whereas Hume places it on the immediate danger arising out of the threat. Thus in the case of R. v. Kray (Ronald) (1969) 53 Cr. App. R, 569, Widgery L.J. at p. 578 propones the test as:

"[If] by reason of threats he was so terrified that he ceased to be an independent actor."

As we see the existing Scottish law, the basic question is whether there was immediate danger of the threat being implemented in the event of non-compliance at the point of time when the decision had to be made. Other considerations may arise where there is an inability to have recourse to the protection of the law or to any other form of reasonably practical means to prevent the threat being implemented in the present or in the future. These considerations do not seem to have been taken into account in the case of Hudson supra, where the fact of the threats having been spoken to in evidence, coupled with the allegation that a man of violence, who was one of a group of men who had made the threats, was in the public gallery of the court, was sufficient to satisfy the Court of Appeal that the issue of duress should have been left to the jury. We freely accept that if there is evidence in the case which supports a defence in law it ought to go to the jury, but the evidence must have that attachment. If it does not, then that evidence should not go to the jury. If the law of Scotland is the law set out by Hume, then with all due respect we cannot see how Hume's first two qualifications would be held to be satisfied if corresponding facts to those in Hudson appeared in a Scots trial, unless of course there was evidence to the effect that the processes of law and order could not afford a reasonable protection against the threats being carried into effect at some future date. Here again the emphasis on threats as distinct from danger from the threats comes into play. In Hudson the Court of Appeal held that the jury should have been left to decide whether the threats had overborne the will of the defendants at the time when they gave the false evidence—and when, we may add, they were presumably under no fear of the threats then being implemented immediately.

Having regard to all these circumstances we have reached the conclusion that we should proceed on the basis of the traditional law of Scotland expounded by Hume as we have interpreted it supra. This is in essence the view of the law taken and applied by the trial judge, who confined the issue of coercion to immediate danger from threats. In our view, he gave the proper directions in the circumstances of the case in a careful and meticulous manner, and we reject the contention that he misdirected the jury in his presentation of the law to them. The appeal is accordingly refused.