r_martinCACD1989
References: [1989] 1 All ER 652, [1988] 88 Cr App Rep 343, [1988] EWCA Crim 2
Links: Bailii
Coram: Lord Lane LCJ, Simon Brown, Roch JJ
Ratio: The defendant appealed against his conviction for driving whilst disqualified. He said he had felt obliged to drive his stepson to work because his stepson had overslept. His wife (who had suicidal tendencies) had been threatening suicide unless he drove the boy to work, since she was so worried that her son might lose his job. He sought to bring the defence of necessity, but it had been disallowed.
Held: The appeal was allowed. The defence of necessity is recognised in English law. It was available if, viewed objectively, the defendant could be said to have acted reasonably to avoid death or serious injury, or the threat of it. When considering the defence of duress, what the jury had to be concerned with was the defendant’s perception of the threat with which he was confronted and to consider whether or not in relation to that perceived threat he acted reasonably and proportionately in responding as he did, and the question of whether or not there was actually a threat to justify his response is neither here nor there.
Simon Brown LJ said: ‘The principles may be summarised thus: first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused’s will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances’. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: 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? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established. That the defence is available in cases of reckless driving is established by Conway (supra) itself and indeed by an earlier decision of the court in Willer (1986) 83 Cr.App.R. 225. Conway is authority also for the proposition that the scope of the defence is no wider for reckless driving than for other serious offences. As was pointed out in the in the judgment, (1988) 88 Cr.App.R. at 164, [19888] 3 All E.R. at 1029h: ‘reckless driving can kill.’ We see no material distinction between offences of reckless driving and driving whilst disqualified so far as the application of the scope of this defence is concerned. Equally 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.’
This case cites:
- Approved – Regina v Graham (Paul) CACD ([1982] 1 WLR 294, Bailii, [1981] EWCA Crim 5, (1982) 74 Cr App R 235, [1982] 1 All ER 801)
The defence of duress requires establishment of a reasonable belief. In judging the accused’s response the test is: ‘have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, . . - Cited – Regina v Conway CACD (Bailii, [1988] EWCA Crim 1, [1989] QB 290)
The defendant appealed against his conviction for reckless driving. He said the offence was committed out of necessity, since his passenger’s life was under threat.
Held: Necessity can only be a defence to a charge of reckless driving where . . - Cited – Regina v Willer (Mark Edward) CACD ((1986) 83 Cr App R 225)
The defendant appealed against his conviction for reckless driving (absolute discharge and ten penalty points). He drove his car slowly on the pavement in front of a shopping precinct. He said that this had seemed to him to be the only way in which . .
(This list may be incomplete)
This case is cited by:
- Approved – Regina v Cairns CACD (Gazette 17-Mar-99, Times 05-Apr-99, Bailii, [1999] EWCA Crim 468)
The defendant had been driving a car. It was surrounded by a group of youths, one of whom threw himself on the bonnet of the car. The defendant, feeling threatened drove off, and the man on the bonnet was injured.
Held: When establishing the . . - Approved – Regina v Abdul-Hussain; Regina v Aboud; Regina v Hasan CACD (Times 26-Jan-99, [1999] Crim LR 570, Bailii, [1998] EWCA Crim 3528)
The law of the defence of duress arising out of threat or circumstances is in need of urgent parliamentary clarification. Appeals were allowed where the defendants hijacked an airplane in order to escape deportation to a hostile country. ‘The . . - Cited – Regina v G and R HL (House of Lords, [2003] UKHL 50, Bailii, Times 17-Oct-03, Gazette 13-Nov-03, [2003] 3 WLR 1060, [2004] 1 AC 1034, Bailii, (2003) 167 JP 621, (2003) 167 JPN 955, [2004] 1 Cr App R 21, [2003] 4 All ER 765)
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . . - Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD ([2004] EWCA Crim 1981, Bailii, [2005] QB 259)
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . . - Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA (Times 10-Oct-00, Bailii, [2000] EWCA Civ 254, [2001] 1 FLR 267, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, [2001] 9 BHRC 261, [2000] 3 FCR 577, [2001] Fam Law 18, (2001) 57 BMLR 1, [2000] Lloyd’s Rep Med 425, [2001] UKHRR 1)
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . . - Cited – Regina v Shayler CACD (Times 10-Oct-01, Gazette 18-Oct-01, Bailii, [2001] EWCA Crim 1977, [2001] 1 WLR 2206)
The defendant had been a member of MI5. He had signed the Official Secrets Act, but then disclosed various matters, including material obtained by interceptions under the Interception of Communications Act. He claimed that his disclosures were made . . - Cited – Regina v Pommell CACD (Gazette 13-Jul-95, Ind Summary 05-Jun-95, Times 22-May-95, [1995] 2 Cr App R 607, Bailii, [1995] EWCA Crim 7)
The defendant appealed against his conviction for possessing a loaded shotgun. He had wished to advance a defence to the effect that on the previous evening he had taken it ‘off a geezer who was going to do some damage with it’ in order to stop him. . . - Cited – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD (Bailii, [2005] EWCA Crim 1415, Times 22-Jun-05, [2006] Crim LR 148, (2006) 89 BMLR 169, [2006] 1 All ER 988, [2005] 2 Cr App R 34, [2005] 1 WLR 3642)
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . . - Cited – Regina v Jones (Margaret), Regina v Milling and others HL (Bailii, [2006] UKHL 16, Times 30-Mar-06, [2006] 2 WLR 772, [2006] 2 CAR 9, [2002] 2 CAR 128, [2007] 1 AC 136, [2006] 2 Cr App Rep 9, [2006] 2 All ER 741, [2007] Crim LR 66)
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . . - Cited – Director of Public Prosecutions v Ubhi Admn (Bailii, [2003] EWHC 619 (Admin))
The prosecutors appealed the finding by the magistrates that there were special reasons for not disqualifying the defendant from driving after finding him guilty of driving with excess alcohol. He had driven his sister to hospital after she fell and . . - Cited – Regina v CS CACD (Bailii, [2012] EWCA Crim 389, [2012] 1 Cr App R 31, [2012] 1 WLR 3081, [2012] Crim LR 623, [2012] WLR(D) 54)
The defendant appealed against the refusal of the judge to allow her defence of necessity in answer to a charge under section 1 of the 1984 Act. She said that it had been necessary to prevent the child being sexually abused.
Held: The appeal . .
(This list may be incomplete)
Leading Case
Last Update: 17 November 2018
Ref: 186846
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