Case No. UKUT-00376-(IAC)

63. There are five requirements of the defence of duress as specified in article 31 of the ICC Statute. They are these: i. There must be a threat of imminent death or of continuing or imminent serious bodily harm; ii. Such threat requires to be made by other persons or constituted by other circumstances beyond the control of the person claiming the defence ; iii. The threat must be directed against the person claiming the defence or some other person; iv. The person claiming the defence must act necessarily and reasonably to avoid this threat; v. In so acting the person claiming the defence does not intend t o cause a greater harm than the one sought to be avoided . The requirements are cumulative, all require to be satisfied . 64. The appellant’s position is that she did not seek out promotion within the prison and that she was only given it as a consequence of the discipline which she brought to her work and the fact of a senior post requiring to be filled. This process receives some general support from the expert report prepared for the appellant by Ms En a yat . Nevertheless, the appellant worked as a prison guard in the prison for a period of well over ten years , holding a senior position for the last two of these years. 65. The appellant’s evidence was that she did not approve of the way the prisoners were treated but that having signed the contract she could not resign. She stated variously that she thought about leaving her job many times , that she was waiting for an opportunity to leave, that she was thinking of getting early retirement, that if there had been any possibility for her to leave her job she would have done so and that one could not leave unless fired . Her reasons for continuing to perform her duties require to be carefully measured against the requirements of duress . 66. The appellant’s position was that her conduct had first of all to be seen in context. She stated that the requirement for a civilian employee of the Revolutionary Guard Corps was that she had to complete her term of service before she would be allowed to leave. The only people she knew who left the prison were those who had retired after the end of their term of service or who were transferred to another prison establishment. She stated that when her employment commenced she was required to sign a contract of employment and told that she had to continue to work at the prison until her retirement, unless she was transferred somewhere else. 67. This evidence of context received a degree of support from the evidence of Ms En a yat who provided a quote from article 136 of the Revolutionary Guards Employment Law of 1991 which provides: “Should the resignation of personnel be a personal request and they have undergone twice the duration of s tudies and the duration of service has been at least the minimal duration of service as determined in the employment contract an d not less than five years, it is acceptable with the approval of the au thorities mentioned in Article 87.” 68. In her evidence before us the appellant claimed that her minimum duration of service was 25 years which, as Ms Isherwood observed, was the first time that this claim had been made. However this focus on the “employment law” aspect of the appellant’s circumstances does not advance her claim t o have been acting under duress. For this what matters is what would have happened had she not complied with her duties. 69. The essence of the defence of duress is that the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied upon. The first question for the appellant to answer then is which threats does she rely on? The appellant has never claimed that she was told by anyone or in any circumstances that she would be subject to any form of ill treatment if she failed to comply with her duties. At one passage in her statement she explains she feared that if she did not continue with her duties her child would have problems in the future, such as being prevented from entering university and the marriage prospects of her child might be diminished. Plainly this is of no relevance. The closest to any form of threat which the appellant identifies is in paragraph 18 of her April 2014 statement where she states : “… and I was quite sure that if I wa s to leave, I would have had a serious problem with the Revolutionary Gua rd. I think that even if I had just asked to leave, this would have raise d a lot of suspicions. I would have been suspected of havin g sold out or having passed on information about the prison which was secret. If I had left without permission, I would have been treated as a traitor for having acted against the Revolution and this would have resulted in a harsh punishment: I am sure that I would have been imprisoned and tortured and I was very afraid of the prospect of being tortured and raped.” 70. The appellant deals with two separate situations in this passage, first her concerns about asking to leave and secondly her concerns about leaving without permission. Her concern about leaving without permission receives a level of support from the expert testimony of Ms Enayat who explains that absence from the appellant’s post without permission would be penalised as desertion, with a penalty from six months to two years imprisonment in circumstances where there was a high likelihood of torture and severe ill-treatment in pre-trial detention. However , the position with the appellant’s first concern is much more ambivalent . Ms Enayat explains in her report that resignation is possible but is only acceptable after the minimum duration of service as determined in the employment contract and not less than five years. It is also subject to the approval of the commander of the relevant division and that approval is likely to depend upon the view of the security units. She states that someone in the appellant’s position employed in a politically sensitive role: “..would obviously face suspicion, investigation and possibly threats should they apply to resign.” 71. The defence of duress in terms of article 31 of the ICC Statute is framed in light of the conduct which the defence addresses, namely genocide, crimes against humanity and war crimes. It is therefore unsurprising that it is available only in respect of conduct resulting from the threat of imminent death or of continuing or imminent serious bodily harm. A merely abstract danger or simply an elevated probability that a dangerous situation might occur would not suffice and the threat relied on must be objectively given and not merely exist in the perpetrator’s mind – see Triffterer & Ambos page 1151 . 72. The appellant’s concern was that if she had sought to resign or be moved to other duties this would have given her a serious problem with the Revolutionary Guard leading to suspicion. S he does not point to the evidence of what became of anyone else who sought to resign or be moved. Even if the evidence of her concern is accepted it amounts to an anticipation on her part rather than any form of express threat. Even if we proceed upon the basis that an implied threat would be sufficient, it is impossible to see that the consequence which the appellant identifies would meet the standard of threat required by article 31. This is not evidence which reflects her acting under the threat of imminent death or of continuing or imminent serious bodily harm. Neither does the evidence of Ms Enayat that she might have been the subject of suspicion, investigation and possibly threats had she made such a request provide the necessary foundation evidence. 73. A separate requirement of the defence of duress is that the accused must act necessarily and reasonably to avoid this threat . As is said in Triffterer & Ambos at page 1153: “This, undisputedly, means that the act directing at avoiding the threat must be necessary in terms of no other means being available and reasonable for reaching the desired effect.” Another way of looking at this is that the defence of duress is only available if the individual cannot be fairly expected to withstand or assume the risk. A threat results in duress only if it is not otherwise avoidable i.e. if a reasonable person in comparable circumstances would not have submitted and would not have been driven to the relevant criminal conduct. It is therefore neither required to show special valour, prowess or heroism, nor does a weak will or weakness of character exclude the criminal responsibility of a defendant. This is not to say that one may simply follow the most convenient way out, rather has the coerced person to seek every reasonable, not too distant evasive alternative for avoiding the commission of a crime - Triffterer & Ambos , again at page 1153. 74. These observations are entirely in keeping with domestic law – see