England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		15th October 1997

LORD JUSTICE BROOKE:

1. This is an appeal by the prosecutor by way of Case Stated against a decision of the Justices sitting at Stevenage Magistrates' Court on 10th April 1997 to acquit the respondent of an offence of driving a motor vehicle on the A505 near Royston after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to Section 5(1)(a) of the Road Traffic Act and Schedule 2 of the Road Traffic Offenders Act 1988. The Justices acquitted the respondent because they considered that the offence of duress of circumstances was available to him and that it should be applied, and the question of law which arises for our consideration on this appeal is whether this defence can apply where there had been no threat of violence towards the accused person.
2. The Case shows that the Justices found the following facts:

"(a) The respondent lived with his wife and family in one of two cottages set in isolated farmland near Royston.

(b) Shortly before midnight on

5th October 1996 Constables Gower and Cruse of the Hertfordshire Constabulary received a call to attend the respondent's home following a report of a domestic dispute. Information passed by the Officers by radio was that the respondent was in possession of a shotgun.

(c) The Officers arrived at the respondent's home address shortly after midnight, they were in a marked police vehicle but only used headlights on approach to the house. There was no other indication given at that stage that they were driving a police vehicle. The Officers stopped outside the cottages and almost immediately saw a vehicle driven away from the rear of the cottages along a farm track towards the A505 road. The vehicle was described as small with an illuminated roof sign. The Officers followed this vehicle along the track at the maximum speed they could safely maintain at a distance of approximately 70 - 80 yards from it. The track was described as a single lane having a rough surface and full of pot holes with no area on which to turn a motor vehicle before reaching the junction with the A505 road. The Officers did not activate their sirens or flashing lights nor were they sure whether their headlights were on dipped or main beam. There was no other form of lighting in the vicinity.

(d) The vehicle being followed, which was later found to be the Vauxhall Combo van driven by the respondent, stopped just short of the A505 road. The Police vehicle was stopped approximately 60 - 70 yards behind it. The van lights were extinguished. The driver left the van, walked to the rear of it, and was seen to look towards the Police vehicle for

20 - 30 seconds before returning to the van, switching on the lights and then driving onto the road. The police vehicle followed the van onto the road where the Officers activated their blue flashing lights and flashing headlights. The respondent accelerated the van eventually reaching a speed of approximately 90 miles per hour, after negotiating a further one or two bends, pulled normally into a lay-by and stopped. The distance from the track where the van joined the road to where it stopped was approximately one mile and time taken to cover this was variously estimated by the Officers as from 45 seconds to no more than 2 minutes.

(e) The respondent left the van and walked towards the police car. He was told to lie in the road which he did. He was then restrained by police officers, handcuffed and placed in the police vehicle. He then co-operated with the breathalyser procedure and provided a sample of breath which was positive. He was arrested on suspicion of driving with an excess of alcohol in his body. After caution he replied 'No I have nothing to say'. On arrest he appeared to be calm and not agitated.

(f) The respondent was taken to Hitchin Police Station where the correct breathalyser procedure was followed and a test on the Lion Intoximeter showed a lower reading of 51 micrograms of alcohol in every 100 mls of breath.

(g) At no time either at the roadside, in the vehicle or whilst at the Police Station did the respondent express or suggest any surprise or relief that it was Police Officers who had been following him, nor did he seek to explain that the reason for his flight was because he feared violence from another person.

(h) The respondent had left his home earlier that night following a dispute between him and his wife. He later returned to the house which was then empty but he could hear his wife talking in the adjoining house. He intended to spend the night in his van at some distance from the house and as he drove away he immediately became aware of a vehicle following him. The respondent thought the vehicle was driven by his neighbour as this was the only other vehicle at the cottages. He described his neighbour as being taller than him, approximately 6 feet and of muscular build who has a temper, shouts a lot when he is angry and was told he was a disciplinarian. The respondent was convinced in his own mind that his wife had told the neighbour of the domestic dispute and as a result the neighbour would inflict serious physical harm on the respondent. He had not seen the police vehicle approach, could only see the headlights of the following vehicle, was unable to see any markings on it or to identify what type of vehicle it was. His fears were confirmed by the manner in which the following vehicle maintained an even distance, stopped when he did and moved when he did. The respondent did not wish to drive on to the road as he had been drinking and was aware he may have exceeded the legal limit. The respondent drove his vehicle on to the A505 road and stopped when he became aware he was being followed by a police vehicle. The respondent has known the neighbour for some 15 years and has not been subject to any threats or violence by him during that time."

3. Those were the facts found by the Justices, including their findings about the respondent's belief when he drove the car as he did. I should add that we have been told by Mr Dacey, who appears for the respondent in this court, that the proceedings in the Magistrates' Court were conducted on the basis that it was only the A505 road to which the restrictions in section 5(1)(a) of the Road Traffic Act 1988 applied and no attention was paid in the Magistrates' Court to the particular status of the rough track referred to in the Magistrates' findings.
4. This is yet another case in which the defence of duress of circumstances has caused difficulties. The nature of the difficulties can be illuminated by the Justices' account of the submissions of law which they received. The Justices said:

"On behalf of the respondent

The respondent submitted that the defence of duress of circumstances applied to the actions of the respondent and relied upon the authority of DPP v. Bell (1992) Crim LR 176 and Blackstone's Criminal Practice (1997 edition) at pages 50 and 51. A3.28

In addition submissions were made in relation to the burden of proof on the prosecution in relation to the offence of duress. In particular the attention of the Court was drawn to the following quote

'first was the accused or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result. Second, if so would a sober person of reasonable firmness sharing the characteristics of the accused have responded to that situation by acting as the accused acted.'"

7. I interpolate by saying that the reference to the reasonable belief of the accused is a mistake which is made over and over again when the subjective test as to the accused's belief is under the spotlight. Mr Dacey did not suggest that that was a correct proposition of law, even though it was less favourable to his client than the correct proposition would have been.
8. Of the contentions made on behalf of the appellant, the Justices said:

"The appellant relied upon the authority of DPP v. Davis and DPP v. Pittaway (1994) Crim LR 600 arguing that there was no evidential basis to support the respondent's contention that there were reasonable grounds to fear violence against him."

Again, the Justices seem to have been focused purely on the respondent's subjective belief and what appears to be recorded is a misunderstanding of how the law stands.

The Justices concluded:

"We were of the opinion that the respondent had formed a genuine fear of violence being inflicted on him, that no direct threats had been made to him, this fear had arisen from his activities that night that accordingly, the defence of duress of circumstances was available to him and should be applied. We therefore found the respondent not guilty and acquitted him."

9. It is noteworthy that in the Justices' decision they focus only on the respondent's belief, the subjective test. At no stage do they apply the second, objective test, as to whether it was reasonable for him to act as he did in driving the car under the influence of drink on to the main highway in that belief. Although a contention was made on behalf of the respondent that they had to apply that test, there is no evidence that they did. I am bound to say that I have great sympathy for the Justices in trying to apply this difficult area of the criminal law, particularly if the submissions they receive about the principle they apply are not all themselves well-founded in law. As I have said, the question for the opinion of this court, as stated by the Justices, is:

"Can the defence of duress apply where there has been no threat of violence towards the accused person?"

10. During the course of argument counsel, in my judgment correctly, concentrated on the question, was the finding by the Justices one that they were entitled to reach as a matter of law on the evidence put before them?
11. On 17th October 1996, nearly six months before the hearing before the Justices, the Court of Appeal endeavoured to give clear guidance as to the scope of the law on the defence of duress of circumstances. When I say the Court of Appeal "endeavoured" to give clear guidance, it is noteworthy that the guidance given by the Court of Appeal that day was not known to the Justices, or to the parties appearing in front of them six months later and it was not known to counsel appearing in this court until the court itself drew their attention to the transcript of court's judgment yesterday evening. In the case of R. v. Baker and Wilkins (Court of Appeal Transcript 17th October 1996; digested in [1997] Crim LR 497) I said at pp 7-8 of the transcript of the judgment:

"We can dispose of the possible defence based on duress of circumstances quite quickly. This is a defence which has been discussed by this court on a number of occasions in recent years: see Willer [1986] 83 Cr App R 225; Conway [1989] QB 290; Martin [1989] 1 All ER 652; Cole [1994] Crim LR 582; and Pommell (1995) 2 Cr App R 607. In our judgment the main ingredients of the defence appear to be correctly delineated in part of Clause 26(2) of the Criminal Law Bill annexed to the Law Commission's Report on Offences Against the Person (1993) Law Com No 218 (BAILII: [1993] EWLC 218):

'A person does an act under duress of circumstances if --

(a) he does it because he knows or believes that it is immediately necessary to avoid death or serious injury to himself or another, and

(b) the danger that he knows or believes to exist is such that in all the circumstances (including any of his personal characteristics that affect its gravity) he cannot reasonably be expected to act otherwise.'

These principles were clearly articulated by Simon Brown J in Martin, and in Cole the same judge, now a lord justice presiding over the court, said that this was clearly no time to give duress (including duress by threats) any wider ambit than has hitherto been plainly recognised."

12. I can hardly help thinking that if the Justices had had the law placed before them in those clear unambiguous terms, rather than having to try and do their best with no less than three different cases being cited to them together with a passage from a textbook and inaccurate or incomplete submissions of law by the advocates, they would have found their task of deciding whether the defence might apply very much simpler than they did.
13. Mr Coleman, for the prosecutor, submits that the Justices did not apply the law correctly. They merely held that the respondent had formed a genuine fear of violence being inflicted on him and, although no direct threats had been made to him, this fear had arisen from his activities that night. They did not go on to consider the second, objective, test at all. Mr Coleman took us to parts of the evidence which suggested that, even on the subjective test, the Justices could hardly have come to the conclusion that the defendant acted as he did by driving his car on to the main road because he believed that it was immediately necessary to avoid serious injury to himself. He pointed out that there was a period of about thirty seconds in which the following car, seventy yards away, had remained completely stationary and that this was an opportunity that the respondent had from desisting from any intention he might have had to drive his car on to the main road since the driver of the car behind did nothing at all before the respondent decided to drive his car on.
14. However that may be, and this was very much a matter on which the Justices had to reach a finding of fact, based on the impression that the respondent made on them in the witness box, it is completely clear that they did not apply the objective test at all.
15. They did not ask themselves, given the respondent's belief, however mistaken it may have been, that the car behind was being driven by this neighbour, who had the characteristics mentioned in their findings, whether it was reasonable for the respondent to drive his car, knowing as he did that he had been drinking that night, on to the main road, rather than taking some other form of evasive action, such as leaving the car and going by way of escape over the fields. In other words, the Justices did not apply at all the second part of the test which required them to consider whether the danger which the respondent believed to exist might have been such that in all the circumstances he could not reasonably have been expected to act other than he did.
16. Mr Dacey made a valiant effort to save the Justices' findings. He submitted, quite rightly, that the Justices had made clear findings of fact about the respondent's state of mind, which were bolstered by the fact that as soon as the respondent became aware that he was followed by the police (because of the siren and the blue lights), he pulled up into a layby and co-operated with them. But, as I have said, there is not a sign in the Justices' decision that they applied the objective test at all.
17. In my judgment, in these circumstances, this decision of the Justices clearly cannot stand. The question which remains for decision is whether the case should be remitted to the Justices with a direction to convict, or whether the matter should be remitted, perhaps before a new bench of Justices, to be heard all over again. Another possibility would be to remit the matter to the same bench of Justices to apply the law correctly in accordance with the clear statement of the law that this court has now reiterated.
18. In my judgment, on those facts, this was a case in which no reasonable Bench of Justices could have reached the conclusion that the defence of duress was available. There was no way on these facts that the second objective test could have been met. Nobody, objectively, could say that the driver of the car who knew he had had a considerable amount to drink, might reasonably be regarded as having had no option but to drive on to the main road. In my judgment the appropriate direction should be that the matter should be sent back to the Justices with a direction to convict.
19. One of the reasons I have reached that decision is clear when I repeat another passage in the judgment in R. v. Baker and Wilkins in which I said this:

"Another difficulty is that the defence of duress exists to accommodate human frailty when the mind of a defendant is so overpowered by some threat of death or serious physical injury that he or she cannot reasonably be expected to act otherwise, so that it is not fair to burden him or her with criminal responsibility."

20. In Graham [1982] 1 WLR 294 Lord Lane CJ said:

"In duress the words or actions of one person break the will of another."

One of the dicta on which he relied was contained in a vivid passage in the judgment of Murnaghan J in the Irish case A-G v. Whelan [1934] IR 518 at p 526:

"Threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal."

21. The courts in recent years have made it clear that in certain circumstances the defence of duress of circumstances may be available as a defence in some type of driving case. It is an extremely rare and exceptional case in which the defence would be available and, in my judgment, on the facts of this case, there can be no question but that a conviction would be inevitable even if the defence was raised.
22. Before leaving the case, I would say two things. First, it is pertinent to note that this is yet another case where Justices have been caused wholly unnecessary difficulties and the parties have been put to wholly needless expense because the defence of duress is not expressed in a simple, easily accessible, statutory form. Mr Coleman copied for the benefit of the court in this case alone no less than 71 pages embracing 13 different textbook and case law sources in order to show us that the law is as it was stated to be in R. v. Baker and Wilkins, a decision of which he was not aware when he prepared this documentation. We have been given further case law by the other side, and one imagines that the same depth of legal learning is employed up and down the country in Magistrates' Courts when the defence of duress of circumstances is raised, taking up time and involving the expenditure of considerable legal costs. In my judgment, as this court said in R. v. Baker and Wilkins, and as it has been said in a number of other cases recently. The sooner this defence is codified in simple terms, the better.
23. The other matter to which I would refer is a point which, although raised in counsel's skeleton argument, does not fall for decision on this appeal. It arises out of a comment in the Criminal Law Review by Professor John Smith ([1997] Crim LR 498) that the defence of duress of circumstances should be available in a case where a person acts because he knows or believes it is immediately necessary to avoid serious psychological injury to himself. As I have said, although that issue was raised in counsel's written argument we do not have to decide it in this case. I will merely observe in the light of Sir John Smith's comments and in the light of the recent decision in the House of Lords in Ireland and Bristow [1997] 3 WLR 534, that there is clearly a great deal of force in what Sir John Smith says. For the reasons given, I would allow this appeal and remit the case to the Justices for a direction to convict.
24. MR JUSTICE GAGE: I agree. In answer to the question posed by the Justices:

"Can the defence of duress of circumstances apply where there has been no threat of violence towards the accused person?"

25. I would answer, on the facts found by the Justices in this case, the answer is "No". I too would remit the case to Justices with a direction to convict.

MR COLEMAN: I am instructed to ask for costs. Mr Rogers, I think, is legally aided. I seek, at the very least, a contribution.

MR DACEY: Mr Rogers is not legally aided. He may have been for the more serious crime, but not for this matter. I would also apply for costs, costs from central funds, although costs do usually follow the event. It is clear in this case it that was not through Mr Rogers doing that he has been represented at this level. He need not have been. It is in my submission something which has assisted the court and he should not be penalised for that.

LORD JUSTICE BROOKE: What order for costs was made in the court below?

MR DACEY: May I take instructions?

LORD JUSTICE BROOKE: Yes, of course.

MR DACEY: My Lord, it was an order from central funds. I understand that when an order is made in those terms the costs are made by the solicitor for those to be claimed.

LORD JUSTICE BROOKE: By the solicitor to whoever is in charge of the central fund?

MR DACEY: My Lord, yes. Costs to be taxed by the central fund.

LORD JUSTICE BROOKE: Yes, certainly. Is the defence in the Magistrates' Court more expensive or less expensive than it is in the High Court?

MR DACEY: I think it is slightly less expensive than a trip to the High Court.

(Discussion between Brooke LJ and Gage J as to the matter of costs)

LORD JUSTICE BROOKE: The view the court takes is that we will leave the order for costs below undisturbed. The respondents should pay the appellant's costs in this court.

MR DACEY: My Lord, one further matter. I do not know whether you have a copy of the case of R. v. Baker and Wilkins in the Criminal Law Review? My Lord, it does not set out in terms that your Lordship has just given in judgment and makes a passing reference with the commentary saying:

"This case provides a good illustration of the muddle and inconsistency in the law governing defences to crime and the Court makes a powerful plea for the implementation of the criminal code; but is anyone listening?"

LORD JUSTICE BROOKE: Yes. The commentary on the previous page makes a comment on duress by threats of serious psychological injury. The short answer to John Smith's question is, to his enormous surprise, "Yes". I think it was on 31st July 1997, it may have been after reading John Smith's article, that the Home Secretary announced that the Government was intending to modernise defence against the person, so goodness knows what we will be dealing with. I hope the Bar is waking up to what is going to hit them if the Convention of Human Rights is incorporated in the day-to-day work of the Magistrates' Court. The Magistrates are going to need all the help they are going to get.

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