Felicity Gerry QC makes a submission to the All Party Parliamentary Group (APPG) on Miscarriages of Justice on the issues of miscarriages of law relating to Complicity and Coercion.

Felicity has had 12 cases on complicity in 5 jurisdictions including as leading counsel in the UKSC in R v  Jogee 2016 (parasitic accessorial liability) and in the Court of Appeal in R v Lewis in 2018 (joint principalship). Her appellate practice and academic research covers issues of human trafficking and coercion. 

You can read the following article below:-

Submission to APPG on Miscarriages of Justice 20191
Professor Felicity Gerry QC
Please note, this submission is designed as an ‘easy read’.
I am keen to give evidence to the APPG, subject to my availability: I am currently
defending a long trial in Australia.
Biography
I am Queen’s Counsel at Carmelite Chambers, London and Crockett Chambers, Melbourne
and I have had ad hoc admission in Hong Kong and Gibraltar. I specialise in leading for the
defence in serious and complex criminal trials and appeals, often with an international element
and usually with a difficult legal issue or a difficult client (sometimes both).
I was leading counsel for Ameen Jogee in R v Jogee [2016] UKSC 8 (Jogee) which corrected
an error of law in joint enterprise. Parasitic accessorial liability, otherwise known as extended
common purpose, was expunged. The BBC correctly described this as ‘a genuine moment of
legal history’2. Since then I have appeared in 12 further cases in 5 jurisdictions on issues
relating to complicity in homicide.
I am also Professor of Legal Practice at Deakin University where I lecture on Modern Slavery
Law and Advanced International Legal Practice. My research fields are women and law,
technology and law and reform of justice systems. I am widely published in these areas.
My current PhD candidature considers (in part) the global implementation of defences for
human trafficking victims who commit crime.
Submission Themes
The theme of this submission is a miscarriage of law as a miscarriage of justice.
1 Taken, in part, from a chapter in a forthcoming book on Jogee, edited by Dr Beatrice Krebs.
2 https://www.bbc.com/news/uk-35603309
2
This submission approaches only two legal issues that give rise to miscarriages of justice –
complicity and coercion. It is in FOUR parts:
• PART ONE: UNDERSTANDING CRIMINAL LAW (Starting page 2): A simple
summary.
• PART TWO: COMPLICITY (Starting page 4): In complicity, errors of law have
applied high culpability to those least involved and, particularly in homicide, imposed
the toughest of penalties.
• PART THREE: COERCION (Starting page 12): In coercion, errors of law have too
tightly confined the defence of duress. An absence of legal defences has led to high
culpability and significant punishment for those only involved due to the criminal acts
of others. This particularly affects women coerced to commit crime, where culpability
lies with the perpetrators of coercive control.
• PART FOUR: SOME SIMPLE SOLUTIONS (Starting page 13): The errors on
complicity and coercion logically mean that (in the context of both complicity and
coercion) some people in prison are not criminally culpable or have been too harshly
punished. The consequence is that law and practice in relation to complicity and
coercion have contributed, in my view, to over criminalization and over incarceration,
both of which are miscarriages of justice. In part 4, I suggest some simple solutions.
PART ONE: UNDERSTANDING CRIMINAL LAW
Criminal laws are made up of elements – conduct (actus reus) and causation, fault / state of
mind (mens rea). In complicity there can be a range of conduct which may not physically cause
a death but there is still liability: At common law, criminal law is formulated to forbid certain
acts (here we are considering killing). This covers causing, inducing, permitting and helping
others to act.
• The simplest is causing death without the intervention of another e.g. shooting or
stabbing someone.
3
• Inducing another to kill or do an act dangerous to life may occur through coercion,
deceit or exercise of authority3. There must be evidence of knowledge of essential facts,
an actual inducement and an intention that the inducement will cause death. In relation
to physical acts causing death, we tend to look for evidence of “facilitating” (through
coercion, deceit) or “commanding” (exercise of authority).
• In relation to physical acts causing death, we tend to look for positive evidence of
“assisting” or “encouraging” not mere presence4. This can be before, at or after the
fact.
• Subject to the 2007 legislation, mere persuasion is not enough. A defendant will only
be liable for causing someone else to die at the hands of another by inducement when
s/he purposely does so by force, duress or deception or any advice is sufficient to
amount to, counselling (more than mere advice) under the Accessories and Abettors
Act 1861. Depending on the circumstances, this might include commanding. In relation
to physical acts causing death, we tend to look for more positive evidence of
“instigating”.
• Liability may lie in occasioning harmful acts. This tends to arise in the context of
lawful/unlawful assembly – the issue might be whether any disturbances where
occasioned by those assembling rather than counter protesters. In relation to physical
acts causing death, we tend to look for evidence of more than mere presence amounting
to “assisting”. It is often misunderstood that moving together may not amount to
working together to achieve an unlawful outcome.
• Permitting, suffering or allowing harmful acts tend to arise in relation to statutory
provisions which use those words such as permitting a chemical leak as an
environmental offence. Depending on the evidence there may be an unlawful and
dangerous act or gross negligence to amount to manslaughter. In all of the above, if
consequences are planned, there may be events where S or P depart from a plan and, if
the decision is autonomous (‘for his/her own purposes”) and the other has no
knowledge of that fact, then there is no liability for any crime which is the result of that
departure5.
3 For example, inducing someone to jump out of window knowing the level of drop (or into a river knowing they
can’t swim) by threats of force, would be homicide.
4 R v Coney (1882) 8 QBD 534.
5 See Saunders and Archer (1578) Plowden 473.
4
• It has long been recognized at commeon law that a person induced, coered or decieved
is less than voluntary. Traditionally we looked for evidence that S told P not just what
to do but also how to do it , with the necessary knowledge and intention. This has been
more closely confined by judicial interpretation of duress.6 Most recently the Court of
Appeal (wrongly in my view) rejected a suggestion to widen the terms of duress in
VSJ7. The highly close confining of duress means that coercion and human trafficking
are excluded despite the traditional common law understanding of reduced and
sometimes absent culpability.
PART TWO - COMPLICITY
Overview
It is widely known that the law on complicity has developed to allow culpability for principal
offenders, joint principals and accessories, including where there is a common purpose. The
law in the past wrongly developed to allow for extensions of liability outside of a common
purpose. It is this development that the UK Supreme Court in Jogee properly expunged. For
those affected by the miscarriage of law pre Jogee, the “substantial injustice” test places the
bar for out of time appeals far too high, effectively neutering the Criminal Cases Review
Commission (CCRC) which was set up in the wake of serious miscarriages of justice (some of
those cases involving issues of complicity).
In addition, there are, in my experience, continuing injustices in joint enterprise trials. In trials
post Jogee, cases are put on the basis of inferences without sufficient judicial control either
using foresight (as an evidential test) as a brake on expansive liability or requiring a causal
connection with the crime.
Expansive liability (over criminalisation and excessive punishment) are human rights issues
(particularly in relation to youth, disability and race) that ought to be considered by the senior
courts as an issue of general public importance. It is clear that Jogee has not solved the push
for over criminalisation and access to argue issues of general public importance is not currently
6 R v Cole [1994] Crim LR 582
7 R v VSJ [2017] 1 WLR 3153
5
possible via the Criminal Appeal Act if the Court of Appeal refuses leave to appeal (whether
an appeal is in time or out of time).
Background
Mr Jogee was wrongly convicted of murder after his jury was wrongly directed on the law of
joint enterprise. He was sentenced to life imprisonment for murder with a non -parole period
of 20 years. He was not the principal offender and, at all material times, was outside the house
where the killing occurred. The evidence was that the co-accused (Hirsi) moved towards the
house and Jogee followed sufficiently far behind to be stuck outside. Jogee knew there was
a knife inside on the kitchen draining board. There was no evidence he knew Hirsi had picked
it up. Everyone in the house was surprised Hirsi used it. From outside, Jogee shouted “come
on”, an equivocal comment asking to leave as he texted a driver. The UKSC suggested it was
“hopeless” to argue that Jogee was not guilty of manslaughter. I still disagree. It turns on the
jury’s assessment of ‘come on!’ (just as Derek Bentley’s case turned on “let him have it”). The
original trial judge directed the jury that Jogee and Hirsi went back for ‘something’. There
wasn’t even a crime A from which any extension could be sought under the erroneous law.
Both men were convicted of murder and sentenced to life imprisonment. Ameen was only 22-
yearsold at the time, and, at most, he had waved a bottle outside a house. Six years later, the
retrial jury decided his acts were supportive of Hirsi but could not be sure it was in support of
Hirsi using serious harm. He was convicted at retrial, of manslaughter after Jogee compliant
directions were given on murder and sentenced to a fixed term of 12 years imprisonment. His
case neatly demonstrates how a miscarriage of law causes a miscarriage of justice and also how
the correct law can still allow juries to consider levels of culpability (murder, manslaughter,
not guilty). Any floodgates argument is a nonsense.
The appeal to the UK Supreme Court (UKSC) raised two grounds of appeal (i) a suggestion
that foresight of possibilities should be changed to subjective foresight of probabilities to make
juries stop and think about those on the periphery (a way of confining expansive liability) and
(ii) an assertion that joint enterprise over-criminalises secondary parties. We argued that the
only option was for the foundational law to be restored: The proper question for complicity is
to ask if there is evidence of knowledge of the essential facts and acts which demonstrate an
intention to assist or encourage that crime. The test is subjective. The UKSC agreed.
6
It is worth noting that the Jogee decision was made by the UKSC because the court was
supplied with more material than previous courts8. This was provided in the bundles, in our
submissions and summarised in our ‘Foundations Document’9.
The two important and correct decisions by the UKSC in Jogee were (i) to admit the law had
taken a wrong turn and expunge parasitic accessorial liability and (ii) to correctly restore
foresight as an evidential test. The UKSC did not explain their findings well and spent far too
much time setting up a test to block future appeals, obiter and without argument.
Understanding criminal trials involving complicity (focus on homicide)
The criminal law has always distinguished between principals, joint principals and accessories
– the difference is still often misunderstood and is still worth explaining10.
• The foundation of criminal liability for a principal to murder is an intention to kill or
cause really serious harm.
• The foundation of criminal liability for an accessory is an intention to aid, abet, counsel
or procure the principal in that offence (we now use the language of ‘assist or
encourage’).
• Sometimes there are joint principals, usually by a plan, about which both know the
essential facts and act in furtherance of that plan, each with the necessary intention.
Sometimes people die and there are a range of options: In my case of Lewis11, post
Jogee, the prosecution sought to prove the defendants were joint principal offenders but
could not prove the mechanism for a death by fire: It might have been one or both of
the defendants. It might have been an accident. Might or maybe is not sufficient for the
prosecution to discharge the burden of proof. Nonetheless there was a trial. The judge
found there was no case to answer. The prosecution appealed that terminating ruling.
The Court of Appeal agreed with our submissions and explained that what is necessary
8 R v Jogee at Para 61: “The court has had the benefit of a far deeper and more extensive review of the topic of
so-called “joint enterprise” liability than on past occasions”.
9 Matthew Dyson, Bases and Base;essness in Secondary Liability’ (June 1, 2015). University of Cambridge
Faculty of Law Research Paper No 31/2015; Dyson. M, Principals without distinction [2018] Crim LR 296.
10 This submission does not deal with the 2007 legislation.
11 [2017]EWCA Crim 1734.
7
to prove someone is a principal offender is proof of the act which causes death (with
the necessary intention).
• Sometimes there are varying roles as a mixture of principals and accessories, sometimes
with a plan, sometimes fairly last minute.
• Where a plan is express, there is no real difficulty. A good example here is the Stephen
Lawrence killing where there was evidence of a plan to ‘skin’ black people.
• Where a plan is to be inferred, it is usually on circumstantial evidence. The prosecution
rely on inferences from foundational facts. Badly handled, this can lead to expansive
liability. Foresight and/ or a causative connection can provide a level of control over
the level of evidence required.
• The word ‘plan’ can be unhelpful when what is really alleged is a common purpose,
particularly in spontaneous events. A common purpose may be inferred, for example,
where there is evidence S knew that P was carrying a weapon and does acts from which
it can be inferred s/he intended to assist or encourage. Sometimes knowledge of the
propensity to cause serious harm of the co-accused (such as Ronnie Kray’s knowledge
of his brother Reggie) together with intentional acts intending to assist or encourage
with be sufficient to found liability. In other cases where parties were ‘tooled up’ to
‘take on all comers’ this may be evidence of conditional intention – ‘if the coppers
come, we’ll bash them’ etc. Not every case is a conditional intention case. The Jogee
decision does not make this very clear.
• Sometimes in group attacks, it is not possible to identify a specific principal offender.
This might mean that there was a principal to murder who cannot be identified or that
a principal is suspected but there is insufficient evidence to prove who it was beyond
reasonable doubt or that all are attackers but, particularly in spontaneous events, it
cannot be shown that anyone formed an intention to kill or cause really serious harm
(just to have a fight). Group attacks, in this context, might still amount to manslaughter.
It all depends on the available evidence, particularly of roles played.
• In England and Wales, it used to be that people could be convicted by what became
known as parasitic accessorial liability (PAL). An extension of liability whereby the
trial judge directed the jury to decide guilt based solely on foresight by S of what P
might do (and did – crime B) outside of a common purpose (crime A). This was an error
that the Supreme Court expunged in Jogee.
8
• In relation to assisting or encouraging, there has to be more than mere presence,
although very little is needed to infer ‘more than mere’ and a safer approach would be
a causal connection – as suggested by Lord Toulson in his 2013 book chapter12.
• In all of the above there may be defences of withdrawal and / or self defence (including
householder defence) for the jury to consider.
• In all of the above there may be issues of causing, inducing, permitting and helping
others to act.
It is worth saying that there is no need to change the law on intention in this context. As has
been shown above, there is ample scope to convict and to properly acquit, subject to care and
control in how cases are approached.
Why the decision to expunge PAL was correct
The law on complicity went wrong not because Sir Robin Cooke gave an off the cuff decision
in Chan Wing Sui13. My team in Jogee were able to demonstrate that in successive cases the
issues of complicity had not been properly discussed or analysed since the 1950’s. Sir Robin
Cooke gave a short decision with only two authorities cited in the time honored ‘of course they
were all in it together’ attitude and perhaps the rest, as we say, is history. Perhaps he thought
no one would notice as he was sitting in the Privy Council. Perhaps he was poorly served by
advocates. Perhaps he merely expressed what had been going on for quite some decades. The
result was the development of extensions of legal liability (PAL) that reduced the correct mens
rea of intention to the low threshold of foresight of possibilities. Defendants were found guilty
on the basis that they embarked on crime A and foresaw that their co-accused might commit
crime B. It is no foundation at all for criminal liability. Almost anyone can foresee what
someone else might do. It did not stop the House of Lords in Powell and English14 expressing
12 Sir Roger Toulson’s chapter in ‘Sir Michael Foster, Professor Williams and complicity in murder’ in Dennis
Baker and Jeremy Horder (eds), The Sanctity of Life and the Criminal Law: Te Legacy of Glanville Williams
(Cambridge, CUP, 2013)
13 [1985] AC 168, It may be that Sir Robin Cook was more familiar with the New Zealand legislation which refers
to ‘natural and probable consequences’ which has not been part of English law since 1967. Sir Robin Cooke at
175 adopted the semantic nonsense that contemplation means authorisation: ‘It turns on contemplation or, putting
the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case
of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in
participating in the venture with that foresight.’
14 [1997] UKHL 45.
9
that extensions to liability were based on ‘illogical policy’15 but nonetheless deciding to adopt
a form of extended common purpose for liability outside of a plan. It was an unprincipled and
unjust development of law that influenced the Commonwealth and International Law and has
seen hundreds, if not thousands, wrongly convicted as a miscarriage of law. The UK Supreme
Court were correct to fix this error.
Why the decision that foresight is evidential was correct
Historically, courts approached the scope of a plan by evidence of what the individuals foresaw
from their knowledge of essential matters.
o In some jurisdictions the issue of foresight is objective – were the probable
consequences foreseeable (foreseeability)16
o In England and Wales, whether the defendant foresaw the consequences is
subjective (foresight)
This was (and is) plainly evidential – whether objective or subjective. There is some control
over the prosecution if an acceptable inference is limited to what is objectively probable or
subjectively known. However, over time, foresight (and foreseeability) have been wrongly
used as intention or to deem intention.
The proper approach in complicity cases is to identify principals, joint principals and/or
accessories and use precision in the way the prosecution case is put (which is too often
overlooked or assumed). Foresight (whether objective or subjective) is an evidential
mechanism to find the scope of a plan, not to determine or deem mens rea. In fact, foresight of
consequences (whether objective or subjective) is best used, in my view, to confine findings of
fact as to the scope of an enterprise, in order to control expansive liability.
As set out above it may be misleading merely to look for a causal connection as there may be
a range of commands, assistance, encouragement and so forth. Focussing on what the defendant
under consideration knew, for s/he could foresee from those facts (subjectively that must be
more than possibilities as the burden of proof requires proof beyond reasonable doubt and
15 In Gamble [1989] NI 268, Carswell J acknowledged that ‘the law of course is not completely logical’. In Powell,
English 1 AC 1 (HL) at 25F-H Lord Hutton admitted that casting a wide net may not be logical.
16 Foresight of probable consequences is applied in the extreme in the U.S. including where defendants have been
convicted of murder when a co-accused was shot by the police (as a probable consequence).
10
foresight is, in effect, the causative element) and then what acts occurred or things were said
from which evidence of intention can be proved.
Policy problems exposed by Jogee
There is a moment in the movie Three Billboards outside Ebbing Missouri where Frances
McDormand speaks about laws that were invented to catch American gang members the
‘Cripps’ and the ‘Hoods’ and she wished they could be used against priests. It neatly
encapsulates the problem with the law on complicity; that laws have been formulated to target
types of people, not types of conduct. The consequence is that assumptions are made about
people; ‘groups’ become ‘gangs’ and decisions are made which over-criminalize people,
particularly young people and black and minority ethnic (BAME) groups: This allows the
police to round up anyone suspected to be present, prosecutors to take an ‘in it together’
approach, based on the weakest of inferences, and courts lock people up on the longest of
sentences, for the least conduct. Reading centuries of cases involving poachers, the Irish, the
working class and BAME people, I find it hard not to read ‘policy’ as ‘politics’. Post Jogee, an
autistic boy17, a blind boy18 and black youths19 have been refused leave to appeal. The only
successful out of time appeal has been for a man whom Lord Leveson visited in prison. Make
of that what you will but criminological research has found bias and discrimination in this
context20.
Out of time appeals
17 Alex Henry.
18 Jordan Cunliffe.
19 Lewis and Asher Johnson .
20 Ben Crewe and others, ‘Joint Enterprise: the implications of an unfair and unclear law’ [2015] Crim LR 1–16;
Williams, P. and Clarke, B. (2016), Dangerous Associations: Joint Enterprise, Gangs and Racism. London:
Centre for Crime and Justice Studies; Okocha, T (2018) Joint Enterprise and Race, 9 QMLJ 121; Green, A. and
McGourlay, C. (2015) The Wolf Packs in Our Midst and Other Products of Criminal Joint Enterprise
Prosecutions ,The Journal of Criminal Law 2015, Vol. 79(4) 280–297; Hulley, S., Crewe, B., and Wright, S.
(2019), ‘Making Sense of Joint Enterprise for Murder: Legal Legitimacy or Instrumental Acquiesce?’, British
Journal of Criminology; Crewe, B., Hulley, S., and Wright, S. (2014). Written evidence submitted to the House
of Commons Justice Committee on Joint Enterprise. Available online
http://www.crim.cam.ac.uk/research/ltp_from_young_adulthood/evidence_to_justice_committee.pdf
11
The UK Supreme Court corrected legal error in Jogee but imposed (obiter and without
argument) a new 'substantial injustice’ test which prevents worthy appellants from being retried
or having a murder conviction replaced with manslaughter21. Those affected by the
miscarriages of law pre-Jogee remain in prison without effective avenues to appeal,
particularly as the ‘substantial injustice test’ effectively neuters the CCRC. The top down dictat
applying ‘substantial injustice’ to a situation, where the injustice was created by the courts in
the first place is, in my view, a significant problem, particularly as the Lord Chief Justice was
bumped up from the Court of Appeal to sit on the Jogee / Ruddock appeals. My view is that
the Court of Appeal in post Jogee cases has, in effect, restored the abolished proviso
surrepticiously and contrary to Parliament’s intention. Notably, the proviso was abolished by
Parliament because of judicial bias.22
Decisions by the CCRC not to refer appeals in joint enterprise appeals demonstrates that the
‘substantial injustice’ test is operating poorly in cases where there is a real risk of a miscarriage
of justice due to a miscarriage of law. Decisions by the Court of Appeal to rejected applications
for leave to appeal out of time on the basis that an applicant has to prove they would not have
been convicted places the bar too high. Refusals to grant leave to appeal appears to make the
UKSC functus even in cases of general public importance so human rights issues cannot be
considered by the UK’s highest court and the European Court of Human Rights is not a de
facto appeal court so meritorious cases are being blocked on a principle of finality that applies
to genuine change of law cases not where the law had miscarried. I have likened it to the UKSC
fixing their error but not saying sorry.
Ongoing trials
The continuing problems with complicity cases post Jogee in England and Wales can be largely
summarised as follows:
21 This has been challenged by Alex Henry, Asher Johnson and Jordan Towers but the Supreme Court has declared
itself functus, leaving all the decisions to the Court of Appeal regardless of any human rights issues raised.
22 Lord Goddard CJ observed to the House of Lords in 1952: ‘I confess that there are cases when one is strongly
tempted to apply the proviso, because one very often feels the moral conviction that the man appealing is guilty.’:
United Kingdom, Parliamentary Debates, House of Lords, 8 May 1952, 793.
12
(i) Prosecutors use low level inferences to infer complicity creating expansive liability
that is not being controlled by the courts as it should be – foresight is a useful tool
to confine liability. This is widely misunderstood. The correct test for liability post
Jogee is knowledge of essential facts, an assessment of what evidence there is of
what was subjectively foreseen as a result of that knowledge and evidence of acts
which demonstrate an intention to assist or encourage the crime committed by the
principal.
(ii) Liability by something more than mere presence is not clearly defined as to what
connection any presence should have with the ‘enterprise’. Again, this creates
expansive liability. Lord Toulson suggested a causal connection in his book chapter
but not in the Jogee decision.
The result is that approaches in arrest, charge and trial still means the weakest of cases are left
to juries without a legal brake on liability and people are being convicted on the flimsiest of
evidence and, because they are treated in the same way as a principal offender and mandatory
sentencing applies, they wrongly face the harshest of punishment for very little conduct at all.
PART THREE - COERCION
It is widely known and well researched that the levels of vulnerability in prison is high with a
disproportionate impact on viulnerable women. I have published a range of material in this
area23. It is my view that there is ample research to demonstrate that there should be reduced
criminal responsibility or non- liability for people who commit crime when trafficked and
coerced by others. A functioning criminal justice system would focus on those in command
and control. Where people are compelled to commit crime, the common law has been too
closely confined by judicial decisions – removing the concept that coercion affects
voluntariness is, in my view, another judicial error of law. The UK Parliament has addressed
some aspects of the injustices of substantive law by section 45 of The Modern Slavery Act
(MSA) but schedule 4 restricts its application to types of crime, rather than acknowledging the
effect of trafficking. Outside of these provisions, the common law on marital coercion has been
abolished (rather than extended to all relationships) despite the implementation of a law of
23 Listed at www.felicitygerry.com and on ORCID
13
coercive control designed to prosecute perpetrators24. In the absence of a corresponding
defence for those coerced to commit crime, there is a lacuna, particularly where people are
dealt with as complicit. This must logically mean that some people in prison (particularly
women) are not criminally culpable and thus suffering a miscarriage of justice where the true
perpetrator often goes unpunished. It makes no sense whatsoever for a Parliament to enact an
offence of coercive control and then maintain a justice system which fails to recognize that
those subject to such conduct, who commit crime, have no criminal responsibility. The
Sentencing Council has made some progress on the sentencing of drug couriers and the
sentencing of mothers but progress is far too slow and the research compels decisions on
substantive law.
PART FOUR – SOME SIMPLE SOLUTIONS
Some of the issues raised above will inevitably require some significant debate but, what
follows, are some simple solutions readily achievable:
1. Amend the Criminal Appeal Act in two respects:
a. Enact criteria for ‘out of time’ appeals which has the effect of abolishing the
substantial injustice test. If a conviction is unsafe that should be enough
whether an appeal is in time or out of time.
b. Change of one word in the Criminal Appeal Act from “and” to “or” to make
clear that the UKSC has power to hear cases of general public importance where
the CACD refuses any application for leave.25
2. Abolish mandatory sentencing for accessories.
3. Amend the Modern Slavery Act so that the s45 defence applies to accessories in all
types of crime – a simple removal of a few lines.
4. Enact a defence of coercive control – already defined in the offence of coercive
control.26 This can be achieved in three ways:
24 Section 76 of the Serious Crime Act 2015 provides for an offence of Controlling or Coercive Behaviour in an
Intimate or Family Relationship but not more generally. CPS policy on these issues is here
https://www.cps.gov.uk/legal-guidance/controlling-or-coercive-behaviour-intimate-or-family-relationship
25 I believe this is already available pursuant to the UK human rights commitments, but such an amendment would
be categoric.
26 Ibid fn 24.
14
a. Widen the scope of diminished responsibility so that it is not limited to the
exteme suffering of PTSD currently required in English law.
b. Widen the scope of duress – already wider in some Australian jurisdictions.
c. Create a standalone defence of coercion (not limited to marital status or family
relationships).
This is a situation crying out for a Royal Commission. In the absence of such a mechanism, I
suggest an audit of prisoners affected with a view to facilitating petitions for mercy: In the
Northern Territory of Australia I led a successful petition for mercy for Zak Grieve27 to reduce
his non -parole period on a mandatory sentence as an accessory to murder. He was a young
Aboriginal man. The prosecution case was he helped his friend plan / organize the murder of
the violent abuser of his friend’s mother. Due to the pernicious effects of mandatory sentencing
there, he was sentenced to more than the person who committed the murder. The mercy petition
was successful and his non -parole period was reduced from 20 years to 12 years. He remains
in prison despite being found not to have been at the scene of the killing.
A similar audit could also identify the criteria for non -liability /re-sentencing in coercion.
Professor Felicity Gerry QC
Carmelite Chambers
9, Carmelite Street
London
EC4Y0DR
2nd September 2019

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Date: 04/09/2019