England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		28th July 1988.

JUDGMENT (As approved by Judge)

LORD JUSTICE WOOLF: This is an appeal by Francis Gerald Conway against his conviction at the Crown Court at Reading on 30th March, 1988, of reckless driving contrary to s. 2 of the Road Traffic Act, 1972. He was sentenced to six months' imprisonment and disqualified from driving for 18 months. He was granted leave to appeal against conviction, but his application for leave to appeal against his sentence was refused and has not been renewed.

The appeal has been ably argued on behalf of the appellant by Mr. Perry, who did not appear in the court below. His argument does not accord precisely with the grounds of appeal. The notice of appeal contains two grounds. The first can be summarised as alleging that on the evidence before the jury the defence of necessity was raised and the jury should have been, but were not, directed as to that defence. The second ground of appeal is that the jury should have been, but were not, directed that they should first of all consider whether or not the appellant's manner of driving was reckless and, if so, that they should then go on to consider whether they believed the appellant bona fide believed he was acting in an emergency to save the life of his passenger and, if so, whether the manner of driving would be reasonable in the circumstances, and as to the extent that a bona fide belief could operate as a defence.

In relation to the second ground of appeal Mr. Perry submitted that to establish that driving was reckless involves establishing that the defendant took an unreasonable risk, and that there could be circumstances in a case such as the present which would justify what would otherwise be reckless driving. Whether or not it was justified would depend on whether the risk was one which a reasonably prudent man would have taken to avoid what he, the defendant, believe was an emergency giving rise to a probability of serious harm to his passengers or himself.

Not surprisingly, Mr. Perry did not submit that on the direction which was given to the jury the appellant was not properly convicted. The prosecution evidence was that on the day in question, 6th July, 1987, two police officers were on duty in an unmarked police vehicle when they saw the appellant's motor car parked. The appellant was in the driving seat, there was a passenger in the front seat, and another passenger, named Giulio Tonna, in the rear seat. Tonna was known to the police officers as being the subject of a bench warrant and, having seen him in the appellant's car, they pulled their vehicle up alongside his car, blocking the vehicle, and one of the police officers leaned over towards the appellant, showed him his warrant card, and said to him: "Police; wait there I want to have a word with your passenger." He then walked to the rear passenger door of the Rover to speak to Tonna, when he heard Tonna shout: "Go, I am wanted", and, subsequently, "It's the Old Bill, go, I am wanted", at which the appellant drove off at speed. The police officers followed and saw the appellant's car being driven in a way which would undoubtedly normally be regarded as reckless. The appellant's car performed a four-wheel skid around a corner, and drove down a very narrow road, in which there were cars parked on both sides, at speeds in excess of 40 miles per hour. At one stage a car had to move on to the footway to avoid a collision. The appellant approached a junction on the wrong side of the road, forcing another car to swerve on to the pavement to avoid a collision. He also turned sharp left at a junction without stopping, cutting directly in front of a car on the nearside, causing that car to perform an emergency stop, and drove through a "No Entry" sign round a blind corner and along a one-way street until forced to stop by traffic coming in the opposite direction. He was then apprehended by the officers, but Tonna was no longer in the car, and when asked what he was doing he indicated that he wanted to avoid the police catching Tonna.

The appellant's evidence, which was supported by his witnesses, who included his passengers, differed substantially as to detail from that of the prosecution witnesses. The effect of the defence evidence is accurately summarised in the grounds of appeal, as follows:

"A few weeks before the 6th July Tonna had been in a vehicle when another man was shot by a 12-bore shotgun and severely injured and on that occasion Tonna was chased and narrowly escaped. That this event had occurred was not disputed by the prosecution. The appellant understood that Tonna was the main target and intended victim of that incident.

"Immediately before the alleged reckless driving, two young men in civilian clothes came running towards the vehicle and Tonna then screamed hysterically 'drive off.'

The men never identified themselves as police officers, and the appellant drove off because he feared a fatal attack on Tonna. When he drove off the two persons whom he assumed to be intended attackers gave chase in a motor vehicle. It was only after he had dropped off Tonna and ceased driving that he realised the persons were police officers. At all times during the chase he had believed the two men were potential assassins. He did, however, deny many of the details of the alleged reckless driving, maintaining that although he drove at excessive speeds he did not carry out many of the dangerous manoeuvres alleged by the police. He accepted that nevertheless, were it not for the believed emergency, his manner of driving might well have been reckless. He was however petrified and when he saw the 'No Entry' sign he took no notice because he was in a panic."

It is not suggested that the judge did not sum up the evidence fairly. He reviewed the evidence, including that evidence given by the appellant and his witnesses, in a way to which no objection is taken. He also directed the jury about the elements of the offence of reckless driving in accordance with the speech of Lord Diplock in B. v. Lawrence, (1982) A.C. 510, and it is not suggested that, but for the special circumstances which were alleged by the defence to exist, his direction as to the law would not have been adequate. However, because of those circumstances Mr. Perry submits that the jury ahould have been given an additional direction. He says:

"The jury should be directed to consider whether the prosecution had proved beyond reasonable doubt that the appellant did not believe that he was acting in an emergency to save Tonna from serious bodily injury.

"If the jury found that the appellant so believed or may have so believed the jury should be directed to consider whether the manner of the appellant's driving was justified or excused having regard to the circumstances in which he drove."

Although Mr. Perry in his careful and helpful submissions was anxious not to put forward any proposition which was wider than was absolutely necessary for the purposes of this appeal, it appears from this suggested direction that what he is contending for is a defence of necessity based upon subjective belief which would justify what would otherwise amount to reckless driving. In doing this he is departing from the approach which was adopted by counsel who appeared for the appellant in the Grown Court. In submissions made at the end of the evidence and prior to the summing-up counsel accepted that it would be "impossible to run the defence of necessity in this particular case", and that the judge was not required to leave it to the jury. However, he contended that the jury none the less could consider whether the appellant's explanation was reasonable and, if it was, find him not guilty.

The judge, in our view, correctly rejected this contention. It appears from the transcript of the interchange between the judge and counsel that it was also accepted that this case could not be distinguished from R. v. Denton, (1987) Cr. App. R. 246. In Denton the trial judge refused to leave to the jury the defence of necessity, on facts which bear some similarity to those in this case, and the Court dismissed the appeal. In giving the judgment of the Court Caulfield J., having indicated that the Court had been referred to a number of authorities on the subject of necessity, went on to say:

"In view of our ultimate decision it is not necessary to review, still less to comment, on the law of this alleged defence of necessity. This is so because this court takes the view that even if necessity as a defence can be raised in a charge of reckless driving, it certainly could not be raised on the facts relied upon by the appellant in his defence. The appellant did not assert that he had to take risks of causing harm to others to escape from his pursuers or that he had to drive recklessly or that he did not give the nature of his driving a thought. He asserted in terms: 'I did not take risks, I drove carefully throughout.^' In our view, such assertions exclude any possible defence of necessity, even assuming there is such a defence. The necessity if any, was to drive, not to drive recklessly."

Mr. Perry submits that this case can be distinguished from Denton (which we accept), because here, unlike in Benton, although the appellant disputed much of the police evidence about the manner of driving he accepted that because he was "in a panic" he did not drive in a normal manner, in that he drove fast, over the speed limit, and not as carefully as otherwise he would.

In Denton the Court went on to comment on another recent decision of this court: Reg. v. Willer (1986) 83 Cr.App.R. 225.

In Reg. v. Willer the appellant had been convicted of reckless driving. As he drove up a narrow road he was confronted with a gang of shouting and bawling youths, 20 to 30 strong. He heard one of them shouting: "I'll kill you Willer, " and another threatening to kill his passenger. He stopped and tried to turn the car around. The youths surrounded him. They banged on the car. One of the youths dived on the passenger who was sitting in the back and, in the words of Watkins L.J., at p. 226:

"The appellant realised that the only conceivable way he could somehow escape from this formidable gang of youths, who were obviously bent on doing further violence, was to mount the pavement on the right-hand side of [the road] and on the pavement to drive through a small gap into the front of the shopping precinct."

which he did at about 10 miles per hour. Subsequently he returned, driving back very slowly, because he realised one of his passengers was missing from the car. Throughout this period there was still a youth fighting with one of his rear passengers in the car, so the appellant drove to the local police station and reported the matter.

During the course of the trial Willer changed his plea after a ruling that he was not entitled to rely on the defence of necessity. In dealing with this change of plea, Watkins L.J. said, at p. 227:

"Returning to how the appellant came to change his plea, one begins with the reasons advanced by the assistant recorder for declaring that the defence of necessity was not available to the appellant. He seems to have based himself upon the proposition, though saying that necessity was a defence known to English law, that it was not, albeit available to the appellant in respect of the journey through the gap into the carpark in front of the shopping precinct, available to him upon the return journey because he was not at that stage being besieged by the gang of youths. We feel bound to say that it would have been for the jury to decide, if necessity could have been a defence at all in those circumstances, whether the whole incident should be regarded as one, or could properly be regarded as two separate incidents so as to enable them to say that the necessity applied in one instance but not the other. For that reason alone the course adopted by the Assistant Recorder was we think seriously at fault. Beyond that upon the issue of necessity we see no need to go for what we deem to have been appropriate in these circumstances to raise as a defence by the appellant was duress. The appellant in effect said: 'I could do no other in the face of this hostility than to take the right turn as I did, to mount the pavement and to drive through the gap out of further harm's way, harm to person and harm to my property.' Thus the offence of duress, it seems to us, arose but was not pursued. What ought to have happened therefore was that the Assistant Recorder upon those facts should have directed that he would leave to the jury the question as to whether or not upon the outward or return journey, or both, the appellant was wholly driven by force of circumstances into doing what he did and did not drive the car otherwise than under that form of compulsion, i.e., under duress."

It will be noted from the passage in Watkins L.J's judgment, that in Willer it was apparently accepted by the Assistant Recorder and counsel that there could be a defence of necessity to reckless driving. This may explain why the report does not suggest that any authorities were cited to the Court of Appeal, although apparently authorities, including American and Australian authorities, were cited to the Assistant Recorder.

It is convenient to refer to the "duress" of which Watkins L.J. spoke as "duress of circumstances".

In Denton in relation to Wilier, the Court said: "This authority might be taken to suggest that the court assumed that on the facts of the case the defence of necessity could have been raised to a charge of reckless driving. We do not think this authority goes so far. We think it shows that the court doubted whether necessity as a defence could have been raised on the facts of that case but the court saw no need to decide whether such a defence existed as a matter of law. The court said a very different defence was available, which was duress, which should have been left to the jury It should be observed that where the headnote says, at p. 225. 'Further the judge erred in ruling that the defence of necessity was not available to the defendant' it is referring to the argument advanced by the appellant and not to the decision of the appellate court."

The judgment in Denton, while making this reservation on the decision in Wilier so far as the defence of necessity is concerned, made no similar reservation with regard to what was said in Wilier as to dures. In Wilier there were a number of grounds upon which this Court disapproved of the way in which the case had been dealt with in the Crown Court. However, in relation to duress we regard the decision as binding upon this Court.

We have, in addition, had the advantage of having been referred to such other authorities as there are on the subject. In particular, we have been referred to the views of Professor Glanville Williams in his Textbook of Criminal Law (2nd ed.), and to the 6th edition of Smith and Hogan's Criminal Law. We have also been referred to the Law Commission's Report on Defences of General Application (Law Commission No. 83), 1977 which recommended that "there should be no general defence of necessity and if any such general defence exists at common law, it should be abolished". This conclusion was in striking contrast to the Commission's provisional proposals in its Working Paper No. 55, 1974-, to which we were also referred. We have also seen the Law Commission's Report (Law Commission No. 143) on the Codification of the Criminal Law, 1985, which took the view that necessity should remain as a defence at common law, in so far as it is one already. It appears that it is still not clear whether there is a general defence of necessity or, if there is, what are the circumstances in which it is available.

We conclude that necessity can only be a defence to a charge of reckless driving where the facts establish "duress of circumstances", as in Wilier, i.e., where the defendant was constrained by circumstances to drive as he did to avoid death or serious bodily harm to himself or some other person.

As the learned editors point out in Smith and Hogan, 6th ed., at p. 225, to admit a defence of "duress of circumstances" is a logical consequence of the existence of the defence of duress as that term is ordinarily understood, i.e., "do this or else". This approach does no more than recognise that duress is an example of necessity. Whether "duress of circumstances" is called "duress" or "necessity does not matter. What is important is that, whatever it is called, it is subject to the same limitations as to "do this or else" species of duress. As Lord Hailsham said in his speech in R. v. Howe, (1987) 1 All E.R. at p. 777 G-I:

"There is of course an obvious distinction between duress and necessity as potential defences: duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is a distinction without a relevant difference, since on this view of duress it is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other."

No wider defence to reckless driving is recognised. Bearing mind that reckless driving can kill, we cannot accept that Parliament intended otherwise. When Parliament intended a wider defence it made express provision. Section 36 of the Road Traffic Act 1972, in relation to the lesser offence of driving motor vehicles elsewhere than on roads, provides:

"A person shall not be convicted of an offence under this section with respect to a vehicle if he proves to the satisfaction of the court that it was driven in contravention of this section for purposes of saving life or extinguishing a fire or meeting any other like emergency."

It follows that a defence of "duress of circumstances" is available only if from an objective standpoint the defendant can be said to be acting in order to avoid a threat of death or serious injury. The approach must be that indicated by Lord Lane G.J. in R. v. Graham, (1982) 1 All E.R. at p. 806. Lord Lane G.J., in a passage of his judgment approved by the House of Lords in R. v. Howe, said:

"As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in the terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self-control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary-citizen in his situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one. It follows that we accept counsel for the Crown's submission that the direction in this case was too favourable to the appellant. The Crown having conceded that the issue of duress was open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows: (1) was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) if so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing?"

Adopting the approach indicated by Lord Lane C.J., and not that argued by Mr. Perry, which involved a subjective element, we ask ourselves whether the judge in the Crown Court should have left the defence of "duress of circumstances" to the jury, notwithstanding the submission made by his counsel that it was "impossible to run the defence of necessity .... or indeed (to) leave it to the jury."

On the facts alleged by the appellant we are constrained to hold that the judge was obliged to do so, notwithstanding his counsel's submission at the hearing. The judge was referred to both Denton and Willer, and it appears that the explanation for counsel not relying upon Willer is that he was wrongly of the view that the facts of this case were indistinguishable from those in Denton. However, in fact, as indicated by the judge, his client's defence was that he drove as he did because he was in fear for his life and that of Tonna. Although it is unlikely that the outcome of the jury's deliberations would have been any different, they should have been directed as to the possibility that they could find the appellant not guilty because of duress of circumstances, although they were otherwise satisfied that he had driven recklessly.

The jury not having received this direction, this is not a case in which we can properly apply the proviso. On the facts the non-direction related in reality to the appellant's only conceivable defence, and, although unlikely, it is just possible that the jury, if properly directed, would have found the appellant not guilty because of this defence.

Accordingly, we allow this appeal and quash the conviction.

MR. PERRY: My lords, the appellant was not legally aided. I apply for costs here and below.

LORD JUSTICE WOOLF: Out of central funds?

MR. PERRY: Yes, my lord.

15.

LORD JUSTICE WOOLF: Yes, so be it.

(Mr. Torrance asked the Court to certify a point of law of general public importance and for leave to appeal to the House of Lords)

The Court certified a point in the following terms, but refused leave to appeal:

Whether, and if so in what circumstances, a driver who would otherwise be guilty of reckless driving is entitled to rely on a defence of necessity or duress of circumstances.