Case No. UKUT-00376-(IAC)

No. 7 of 2001 Judge Egonda -Ntende gave an opinion in which he dissented in part from the majority decision of the c ourt. On duress however the court was unified. In paragraph 11 of his decision Judge Egonda-Ntende said the following: “In order for the defence of duress to succeed there must be evidence before the court that supports the existe nce of the above five elements 1 . Counsel for the appellant submits that all the accused has to do is raise the defence of dur ess, and it is the duty of the prosecution to negative or disprove its ex istence. The duty to prove the indictment rests on the prosecution a ll the time. If any defence is raised the prosecution, in orde r to succeed must demolish the defence. But that is not all, in my view. I n a defence of this kind, like that of self-defence, an evidential burden of proof shifts to the accused to put the defence in issue. It is no t just enough to claim that he acted under duress. Evidence ha s to be produced by the person seeking to take advantage of thi s defence that establishes the existence of the five elements referred to ab ove. He need not establish the matter beyond reasonable doubt but may do so on the bala nce of probabilities. It is then for the p rosecution to establish beyond reason able (sic) whether that defence is a vailable or not to the accused in answer to the indictment.” 59. These comments seem to us to provide support for the contention that in international criminal law the issue of duress would fall to be considered in a manner similar to that which we set out in paragraph 56 above. The only difference is the suggestion that the person claiming to be acting under duress might require to establish the circumstances underpinning the defence to the standard of the balance of probabilities. It is not clear from his decision why Judge Egonda-Ntende put the matter this way. This imposition of a persuasive burden would seem to be inconsistent with the terms of a rticle 67. Further support for our own view can be found in the passage in Ambos’s Treatise on International Criminal Law relied upon by Ms Pickup and as quoted in paragraph 36 above . 60. The remaining question is whether the case of Oberlander provides the support which the Secretary of State contends for. We would understand the Secretary of State to be referring to the lengthy and detailed decision of Mr Justice Russell issued on 13 January 2015, reported as Oberlander