Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Osborne and Lord Kirkwood for a hearing.

At advising, on 31 January 1997, the opinion of the court was delivered by the Lord Justice-General (Rodger).

OPINION OF THE COURT—On 31 October 1995 the appellant, Mr Roland Maurice Moss, was driving his car south on the A74(M) Glasgow to Carlisle road. He had as a passenger a Mr William Pearson, not a close friend, but someone who shared his interest in market trading. Before they reached the slip road to Kirkpatrick Fleming Mr Pearson suddenly and without prior warning began to shout out in pain, but did not explain the cause of his pain. Mr Moss believed that Mr Pearson had been taken seriously ill. At that time he could have pulled to the side of the road to discover the nature of Mr Pearson's distress and, if necessary, to summon assistance. Mr Moss thought of using his mobile telephone to summon assistance but remembered that the batteries were flat. What he in fact did was to drive in excess of the 70 mph limit with a view to reaching a service area as soon as possible For nearly three-quarters of a mile his speed was recorded as averaging 101.70 mph. He was followed by police officers in a police car who saw his car move from the outside lane across the other lanes and into the slip road leading to the services at Gretna, which were the closest to the point where the incident had begun. By the time Mr Moss parked his car there Mr Pearson had recovered enough to tell him that he had suffered an attack of cramp. Mr Pearson got out of the car and walked to the services building in order to use the toilet facilities there. Meanwhile the police officers spoke to Mr Moss and cautioned and charged him with a contravention of the Motorway Traffic (Speed Limit) Regulations 1974. He made no reply and in particular did not mention Mr Pearson.

In due course the appellant went to trial on a charge alleging a contravention of reg 3 of the Motorway Traffic (Speed Limit) Regulations 1974 and of secs 17 and 134 of the Road Traffic Regulation Act 1984. He was convicted and fined £100, but in view of the circumstances the sheriff decided not to disqualify him from driving. He has appealed against his conviction by way of stated case.

In the sheriff court the solicitor appearing for Mr Moss argued that in Scots law necessity could be a defence to a charge of this kind. The sheriff accepted that necessity could constitute a defence but, having examined the appellant's actings, he went on to hold that a medical emergency could not constitute necessity for these purposes in Scots law. He therefore held that on the facts of the case the defence had not been made out. In the appeal to this court counsel for the appellant renewed the submission that a defence of necessity could apply in such cases and argued further that a medical emergency could amount to necessity. Here, she submitted, Mr Moss had been compelled to drive in excess of the speed limit because he believed—not unreasonably, as the sheriff had found—that Mr Pearson had been taken seriously ill and he wished to take him to the nearest service area as quickly as possible. So the defence had been established.

The submission raises a number of issues, not the least being whether a defence of this kind is available at all in Scots law. But the advocate depute raised a narrower point which has to be looked at first. He pointed out that Parliament had made particular provision in the road traffic legislation for certain emergencies. Section 87 of the Road Traffic Regulation Act 1984 exempts any vehicle from the speed limit when it is being used for fire brigade, ambulance or police purposes ‘if the observance of that provision would be likely to hinder the use of the vehicle for the purpose for which it is being used on that occasion’.

As the advocate depute accepted, however, that section establishes an exemption in somewhat wider circumstances than those which would be covered by any defence of necessity, even supposing such a defence to exist. Section 34(3) of the Road Traffic Act 1988 provides specifically for the situation where someone without lawful authority drives a vehicle off a road, but does so ‘for the purpose of saving life or extinguishing fire or meeting any other like emergency’. While he drew attention to these provisions, we did not understand the advocate depute to argue that the existence of specific statutory provisions of this kind showed that the defence of necessity could not apply to offences under the road traffic legislation. Certainly the courts in England have not taken that line. R v. Martin is a recent example where the Court of Appeal entertained the possibility of a defence on the ground of duress of circumstances to a charge of driving while disqualified. In the result the advocate depute referred to those sections as support for his general argument that the boundaries of any defence based on necessity should be tightly drawn.

A convenient starting point is the crisp observation of Lord Justice-Clerk Wheatley in Thomson v. HM Advocate at p 78 that ‘A defence of coercion is recognised in the law of Scotland’. The equivalent defence in English law is generally referred to as duress. Some indication of the scope of the defence in Scots law is to be found in Hume's Commentaries where the author goes through a range of cases in which arguments had been put forward that an accused person should be acquitted because he acted under compulsion of various kinds. One thing which emerges is that Scots law, as known to Hume, was cautious in admitting such kinds of defence. None the less he does recognise that in certain situations a defence of this type may be made out. He starts with situations of great commotion, or extensive danger, in time of war or rebellion where the forces of law have been overpowered and individuals may be forced to do things for their self-preservation. He then applies a similar approach to situations of less extensive commotion where mobs may roam around, take possession of someone and compel him to take part in their criminal adventure. Sailors who are captured by pirates and compelled to take part in their criminal adventure are treated in the same way. (Commentaries, i, 52). He adds, however, that ‘There may even be situations, though not so common now as formerly, of a more special and private sort of violence, which shall be judged by the same rule.’ The contrast seems to be between cases where there is some fairly widespread breakdown of order and cases where, even though there is no general disorder, the accused has committed a crime as a result of being subjected to violence. Hume admits that a defence may be open in such cases, but says that in the ordinary condition of a well-regulated society, ‘this is at least somewhat a difficult plea, and can hardly be serviceable in the case of a trial for any atrocious crime, unless it have the support of these qualifications: an immediate danger of death or great bodily harm; an inability to resist the violence; a backward and an inferior part in the perpetration; and a disclosure of the fact, as well as restitution of the spoil, on the first safe and convenient occasion. For if the pannel take a very active part in the enterprise, or conceal the fact, and detain his share of the profit, when restored to a state of freedom, either of these replies will serve in a great measure to elide his defence’.

What Hume says in the last sentence has to be read in the light of the comments of their Lordships in Thomson, but, leaving that aside, we deduce from the passage that, although the plea of coercion may be ‘somewhat … difficult’, even in the case of an atrocious crime an accused may be acquitted on the ground that he was compelled to commit it—provided that certain conditions are fulfilled. Rather surprisingly, in Thomson the court interpreted Hume's words as showing that he would have allowed the defence to apply only in the case of ‘atrocious crimes’ (at p 78). If that were so and his view represented the law today, then plainly the defence would not be available in a motoring offence such as the present. We are satisfied, however, that the comment in Thomson was both obiter and unsound. It puts a false gloss on Hume's words. Their plain implication is, rather, that the defence of coercion is more generally available but, in the case of atrocious crimes, it will not in practice be sustained unless the particular qualifications which he mentions are made out. It would be an odd legal system indeed which as a matter of principle allowed coercion to elide guilt of the crime of armed robbery, but not guilt of the offence of exceeding the speed limit.

Among the qualifications which Hume mentions is that the accused acted under ‘an immediate danger of death or great bodily harm’. That requirement is apt to delimit the scope of the defence and to keep it within narrow bounds. Counsel for the appellant did not suggest that any lesser threat would do and we have found nothing in the authorities to which we were referred which would suggest otherwise. On the contrary in McNab v. Guild at p 76 the court held that, if a defence of necessity could be advanced to a charge of reckless driving, it could be made out only where ‘at the material time the appellant was in immediate danger of life or serious injury’. A similar qualification is found in other systems. See, for example R v. Conway at p 297E–F per Woolf LJ. We therefore proceed on the basis that the minimum requirement of any defence of this kind is that the accused acted in the face of an immediate danger of death or great bodily harm.

Counsel argued, however, that the immediate danger of death or great bodily harm did not require to arise out of a threatened assault by a third party. An accused should equally be acquitted if he acted to avoid danger of death or great bodily harm which arose out of a threatened natural disaster or from illness. Similarly, she said, the threat did not need to be to the accused himself. If an accused could be acquitted when acting to avoid danger of death or great bodily harm to himself, he should likewise be acquitted when he acted to avoid such danger or harm to a companion. So, she argued, in this case Mr Moss should be acquitted since he exceeded the speed limit because he not unreasonably believed that Mr Pearson was suffering from a serious illness and he wanted to get him to the nearest service area as soon as possible.

Plainly counsel's argument takes the scope of the defence further than is envisaged in the passage of Hume which we have quoted. But that passage does not purport to give a full description of the defence as it is to be applied in all circumstances. As the Lord Justice-Clerk noted in Thomson, Hume ‘plainly was not seeking to lay down any absolute rule’. So the entire law of Scotland on the topic is not set out in these few lines of Hume, though they provide an invaluable pointer to the general basis on which it rests.

What Hume envisages is a situation where a third party threatens the accused with death or serious injury if he does not commit a particular offence or participate in a criminal adventure—and the accused commits the offence or participates in the adventure. In such cases the threat is directed at compelling the accused to commit a particular offence or to participate in a criminal adventure. But in other cases, where that is not the purpose of the threat, the accused may claim to have committed an offence in order to escape from an immediate threat of death or serious injury. The term ‘duress of circumstances’ has been used to describe the defence in this kind of case in English law. Tudhope v. Grubb is such a case in Scots law. The accused was charged with attempting to drive with an excess of alcohol in his blood, contrary to sec 6(1) of the Road Traffic Act 1972. He had been assaulted by three men, knocked to the ground and kicked and punched on the body. He was injured as a result. He escaped from them, but eventually found himself in his car which was attacked by the men kicking it and trying to smash its windows. The accused tried to drive off to escape them. This resulted in the charge under sec 6(1). The sheriff held that the accused had attempted to drive in an effort to save himself further injury and he had made a full disclosure of the facts to the police at the first opportunity. The sheriff found the defence, described as a defence of necessity, established and acquitted the accused. (It would indeed have been enough if the Crown had failed to rebut the defence.) The Crown appealed but abandoned their appeal. The advocate depute did not suggest that the general approach in Grubb had been incorrect. A similar defence was put forward to charges of reckless driving in MacLeod v. MacDougall and McNab v. Guild, in both of which the accused contended that they had been escaping from assailants. They were convicted and this court refused their appeals on the facts, without deciding whether the defence was available to such a charge. The general approach in Grubb is, however, in line with authorities in other systems such as R v. Willer (reckless driving to escape a gang) and R v. Conway (reckless driving to escape police officers whom the accused believed to be potential assassins). Moreover such an approach appears to be consistent with the requirement of our law of self-defence that a person who is attacked should take any reasonable opportunity to escape from his attackers.

If the defence is available where the accused committed the crime in order to escape a threat of death or great bodily harm from a third party, we see no reason why it should be excluded simply because the immediate threat of death or great bodily harm which the accused is trying to evade arises from, say, a natural disaster or from illness, rather than from the actings of a third party. On this matter we respectfully adopt the reasoning of Lord Hailsham LC in R v. Howe at p 429. He was dealing with an argument that cases on duress could be distinguished from cases on necessity, such as the famous case of R v. Dudley and Stephens, where two shipwrecked sailors were convicted of murdering a cabin boy whom they had killed and eaten to preserve their own lives. The Lord Chancellor rejected that argument and said: ‘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, in my view a distinction without a relevant difference, since on this view duress 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.’

The passage was applied by Woolf LJ in Conway at pp 297–298. Since the hearing in the present appeal we have noticed that Lord Hailsham's reasoning was also adopted by Lamer CJ in the Supreme Court of Canada in Hibbert v. R at pp 1012–1013 where he said: ‘The defences of self-defence, necessity and duress all arise under circumstances where a person is subjected to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents. In the case of self-defence and duress, it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to other causes, such as forces of nature, human conduct other than intentional threats of bodily harm, etc. Although this distinction may have important practical consequences, it is hard to see how it could act as the source of significant juristic differences between the three defences.’

Approaching the matter in this way, we consider that, where an accused commits a crime in an endeavour to escape an immediate danger of death or great bodily harm, it makes no difference to the possible availability of any defence that the danger arises from some contingency such as a natural disaster or illness rather than from the deliberate threats of another. Indeed the advocate depute readily accepted that in principle the defence could be based on medical emergency. So, an accused may drive dangerously in order to avoid an immediate threat of death from an incipient heart attack, or to avoid an immediate threat of death by drowning in a flood or to avoid an immediate threat of death by drowning due to the deliberate actings of a third party. For the purposes of deciding whether they afford a defence to a charge of dangerous driving, the law should regard all of these threats in the same way.

In the present case, of course, the appellant does not argue that he himself was under any threat. Rather, his argument at its highest is that he should be acquitted because he not unreasonably believed that Mr Pearson was seriously ill and he drove as he did in order to bring him as quickly as possible to a place where he might receive assistance. In other words the appellant exceeded the speed limit in order to try to save Mr Pearson from the effects of what he believed to be a serious illness. Again this involves a certain development from the core case since the accused is not escaping a danger to himself but is helping his passenger to escape what the accused not unreasonably believes to be an immediate danger. But once more the approach is consistent with the ethos of our system. The law recognises that ‘Danger invites rescue’ in Scotland just as surely as in New York: Wagner v. International Railroad Co at p 180 per Cardozo J;Steel v. Glasgow Iron and Steel Co at p 248 per Lord Justice-Clerk Cooper. So Scots law has never been so mean-spirited as to confine the defence of self-defence to situations where the accused acts to save himself. It has always recognised that the defence may be available in situations where the accused acts in an altruistic fashion to save a companion: Hume, Commentaries, i, 218. In the same way, if a defence of duress would be open to someone who committed a crime to try to escape immediate danger to his own life or health, it should be open to someone who does the same to try to ensure that his companion escapes such danger. An illustration given by Simon Brown J, as he then was, in Martin at p 346 is particularly instructive for present purposes: ‘… we can see no distinction in principle between various threats of death; it matters not whether the risk of death is by murder or by suicide or, indeed, by accident. One can illustrate the matter by considering a disqualified driver driven by his wife, she suffering a heart attack in remote countryside and he needing instantly to get her to hospital’.

It may be useful at this stage to dispose of the more general issues raised in the present case, before turning to consider how any defence should be regarded on the particular facts. In the stated case the first question which the sheriff puts to this court is: ‘Was I correct in law to proceed upon the basis that a defence of necessity could be available for a road traffic offence of this nature?’ Counsel submitted that this question should be answered in the affirmative and the advocate depute accepted that. In the light of the general considerations which we have discussed the answer should indeed be in the affirmative, provided that ‘a defence of necessity’ is interpreted as referring to a defence based on an immediate danger of death or great bodily harm. The third question in the case was: ‘Did I err in concluding that medical emergency is relevant to sentence only?’ Again counsel for the appellant and the advocate depute were agreed that the question should be answered in the affirmative and, for the reasons which we have given, we are satisfied that this is correct.

There is much discussion in the cases and in the books about the juridical basis of a defence of coercion or duress. Happily there is no reason even to try to add to it in this case. It is sufficient to concentrate on one point which the advocate depute stressed. He emphasised that for the defence to operate the ‘coercion or duress must have dominated the mind at the time of the act and that it was by reason of that dominion that the act was committed’: Thomson at p 79. As the court recognised in Thomson, the law of England is to the same effect. So, in the context of a driving case Woolf LJ held that the defence could arise only ‘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’: R v. Conway at p 297E–F. Where the defence applies, an accused ‘has lost control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, his act is not a "voluntary" one. His "choice" to break the law is no true choice at all; it is remorselessly compelled by normal human instincts’: Perka v. R at p 249 perDickson J giving the majority opinion of the Supreme Court of Canada. It follows that the defence cannot apply where the circumstances did not in fact constrain the accused to act in breach of the law. Again the point is focused by Dickson J in another passage from the judgment in Perka at pp 251–252: ‘Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists "necessity" as a defence, providing the wrongful act was not "avoidable". The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of "necessity" and human instincts’ (emphasis as in the original).

Counsel did not dispute that the availability of the defence had to be tested in this way nor that, if Mr Moss had had an alternative course of action which was lawful, the defence could not apply. What the sheriff says in his note is this: ‘I accepted that the suddenness of Mr Pearson's attack of cramp afforded the appellant little opportunity to reach a considered decision on what action he should take, given that he was already driving, but I could not conclude that the appellant's will had been overcome by the perceived danger to Mr Pearson's well-being so that he (the appellant) had no option but to drive in the manner libelled. It seemed to me that the appellant's conduct was quite deliberate. It also seemed to me that the appellant had available to him the option (and, in my opinion, the prudent option) of driving his vehicle to the side of the road in order to ascertain the nature of Mr Pearson's distress.’ The starting point for the sheriff's reasoning is the fact that Mr Moss proceeded on the basis of a not unreasonable belief that his passenger was seriously ill, when in fact he was suffering from nothing worse than a severe bout of cramp. There is no finding that the appellant asked him what was wrong. The sheriff takes the view that the prudent thing for the appellant to have done would have been to drive to the side of the road, find out what was wrong with Mr Pearson and then decide what he should do in the light of that. The sheriff appears to have concluded that the appellant had a real choice. Certainly the fact that he thought about using his mobile telephone shows that the appellant was able to consider alternative courses of action. The sheriff concludes his note by saying that the appellant ‘had available to him at least one option short of driving at excessive speed, but he did not avail himself of that option’. He must therefore be proceeding on the very understandable basis that, if Mr Moss had pulled over and found out what was actually the matter with Mr Pearson, he would not have felt the need to drive above the speed limit and would not have done so. Since the sheriff has found that the appellant could have prudently followed an alternative course of action which would not have involved committing the offence in question or any offence at all, we too must proceed on the basis that he had a real choice and was not constrained to commit the offence. That being so, the defence of coercion or duress is not available to him.

For these reasons we are satisfied that the sheriff was correct to reject the defence of necessity and was entitled to find the appellant guilty. We shall therefore answer questions 2 and 4 in the stated case in the affirmative and dismiss the appeal.