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Cases - defences - duress of circumstances

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Backshall, R v (1998) CA

Bell, DPP v [1992] QBD

Blythe, R v (1998) Warrington CC

Bourne, R v (1939) McNaghten J

Brown, R v [2007] DC

Cichon, R v [1994] QBD

Conway, R v (1989) CA

CPS v Brown [2007] QBD

Dudley & Stephens, R v (1884) CCR

F v West Berkshire Health Authority (1989) HL

Gillick v West Norfolk & Wisbech Area Health Authority [1985] HL

Johnson v Phillips [1975] QBD

Kitson, R v (1955) CA

Leigh v Gladstone (1909)

Martin, R v (1989) CA

Melchett, R v (2000) Norwich Crown Court

Mouse's Case (1608) KB

Parka v The Queen (1984)

Pommell, R v [1995] CA

Quayle and others and AG Ref (No 2 of 2004) [2005] CA

Re A (Children) (2000) CA

Rodger & Rose, R v [1998] CA

Southwark BC v Williams [1971] CA

Stephens, R v (2002) Carmathen Magistrates (The Times 10 Oct 2002)

Willer, R v (1986) CA

 

Backshall, R v (1998) CA

 

 

 

 

 

 

 

R v Backshall (1989) CA

[General Defences - duress of circumstances -necessity - available for careless driving and dangerous driving]

D drove his vehicle from side to side and had applied his brakes several times.  Another driver overtook him and then attacked the windows of D’s car with a hammer. D drove away at erratically at speed.

 

Held:  The defence of necessity or duress of circumstances is available for dangerous and careless driving. It was desirable that necessity was available as a defence so that it would be plain to the jury or fact-finding tribunal that it was not sufficient to take an objective view of the driving itself without taking account of the reasons for it.

 

Not guilty

Bell, DPP v [1992] QBD

 

 

 

 

 

 

DPP V Bell [1992] QBD

 

[General Defences - duress of circumstances -necessity - available only while threat persists]

D was involved in an argument and, fearing serious personal injury, ran to his car (pursued by several others) and drove away. He was over the blood-alcohol limit.

 

Held:  It was significant that D had driven "only a short way" (the actual distance not being reported), since his defence would have ceased to exist had he continued to drive after the duress of circumstances had evaporated.

Not guilty

Blythe, R v (1998) Warrington CC

 

News report here

 

Red triangle indicating important information

R v Blythe (1998)

 

^[General Defences - duress of circumstances -necessity]

D cultivated cannabis with intent to supply it to his wife who was dying with multiple sclerosis. D feared W might commit suicide and pleaded duress of circumstances.

 

Held: The trial judge told the jury that the defence was not available in such a case.  Nevertheless, the jury disregarded this instruction and found D not guilty.

 

Guilty of possession fined £100

Also here

Bourne, R v (1939) Central Criminal Court Macnaghten J

 

Red triangle indicating important information

 

R v Bourne (1939)

^[General Defences - duress of circumstances -necessity - to protect mother's life]

D a surgeon, of the highest skill, openly, in one of the London hospitals, without fee performed an otherwise illegal abortion to save the girl from becoming a "physical and mental wreck". She was not quite 15 and the victim of a rape.
 

Held:  The jury found that the operation was performed in good faith for the purpose only of preserving the life of the girl.
The surgeon had not got to wait until the patient was in peril of immediate death, if he was of opinion that the pregnancy would make the patient a physical and mental wreck.

 

[Although the judge in this case did not use the word 'necessity, Lord Denning in London Borough of Southwark v. Williams stated it was]
 

Not guilty

Brown, R v [2007] DC

^[General Defences - duress of circumstances -necessity - cannot succeed when threat has passed]

D drove over the legal alcohol limit.  After a party, D received a telephone call saying that three lads were on their way to the house and were "going to get you, Brownie." 

D was terrified and he decided to drive to his grandmother's home

As he left he did not think that 3 men nearby had seen him. They did not chase him.

D was stopped by the police for speeding after about three miles.

 

He agreed that he was not under threat when he was stopped.
 

Held: It is quite plain that the defence of duress of circumstances ceased to be available to D long before he was stopped by the police. He was not being pursued and he had no grounds to think that he was being pursued.

 

Guilty

Cichon, R v [1994] QBD

 

 

 

 

 

 

 

 

R v Cichon [1994] QBD

[General Defences - duress of circumstances -necessity - cannot succeed where Parliament clearly did not allow a defence]

D had a fighting dog unmuzzled in public. The dog was sick and/or choking, and that he removed the muzzle to allow it to breathe.

Held:  Balcombe LJ;

The Dangerous Dogs Act 1991 was a draconian measure, and it was clear that Parliament had not envisaged any exceptions to its requirements. The dog's illness posed no threat of death or serious injury to any person while it was muzzled, and neither statute nor common law allowed a dog owner to make a value judgement as between the well-being of his dog and the safety of the public.

Guilty

Comment: More on dangerous dogs, here

Conway, R v (1989) CA

 

 

Red triangle indicating important information

 

 

R v Conway (1989) CA

 

[General Defences - duress of circumstances -necessity - reckless driving - imminent threat]
D drove recklessly to avoid police whom he thought were going to shoot passenger. (Did not know they were police)

 

D was in his car with a passenger who had been attacked some weeks previously.  Two men approached so he drove off. The two men pursued in another car and so he continued to try to escape driving recklessly.  The two men were plain-clothes policemen; D claimed he was trying to protect his passenger. 

 

Held:  The jury should have been allowed to consider "duress of circumstances" as a defence.

 

Not guilty

CPS v Brown [2007] QBD

[General Defences - duress of circumstances - not available when danger passed]
D drove over the drink drive limit whilst escaping from three men who phoned to say they were on their way to his house and were 'going to get him'.  D drove to his grandmother's house about seven miles away. He claimed the defence of duress of circumstances.

Held: Although the defence had been available to the defendant when he first drove away, once he had realised that he was not being followed by the three males, he should not have continued driving. The case would be remitted with a direction to convict.

Guilty

Dudley & Stephens, R v (1884) CCR

 

 

[General Defences - duress of circumstances -necessity - neither necessity nor duress of circumstances is available as a defence in cases of murder]

Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, DD decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder.

 

Held:  Necessity can never be a defence to murder. Their sentence of death was later commuted to six months' imprisonment.

Guilty

Also here

F v West Berkshire Health Authority (1989) HL

 

 

[General Defences - duress of circumstances -necessity - medical cases]

Doctors sought permission to sterilise a 36-year-old woman with a mental age of five, who had become sexually active but who because of her condition she was incapable of giving informed consent.

Doctors agreed that the psychological effects of pregnancy would be seriously damaging to her, and sought a declaration that they would be acting lawfully in sterilising the woman without obtaining her consent, which she was mentally incapable of giving.

 

Held: Lord Brandon;

Where an adult patient is unable to give or refuse consent - for example, because he is unconscious or mentally disabled, the doctor has a right - perhaps even a duty - to give treatment that is in the patient's best interests, to save his life or to prevent deterioration or ensure improvement in his physical or mental health. Lord Goff;

(obiter) “….a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or even death, commits no wrong.”

 

Declaration of lawful sterilisation approved

Gillick v West Norfolk & Wisbech Area Health Authority [1985] HL

 

 

[General Defences - duress of circumstances -necessity - doctor prescribing contraceptives]

Mrs Gillick a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. 

 

It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, on the other hand that the judges would be encouraging under-age sex if they did not.

Held
A doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health, even though he knew it would assist a man to have unlawful sexual intercourse.

 

By a majority of three to two. A child under 16 who can fully understand the implications of the proposed treatment (a "Gillick competent" child) can give her own consent to medical treatment.

(Since Parliament had not legislated, the courts had to make a decision one way or the other.)


Mrs Gillick lost

Also here

Johnson v Phillips [1975] QBD

[General Defences - duress of circumstances -necessity]

D ordered by PC to reverse the wrong way up a one-way street to allow ambulances access to an injured person.  D refused and was charged with wilfully obstructing a constable in the execution of his duty.

 

Held:   "a constable may direct other persons to disobey traffic regulations if that is reasonably necessary for the protection of life and property"

 

Whether this may or may not amount to superior orders, or to the defence of necessity was not made clear

Kitson, R v (1955) CA

 

 

 

 

R v Kitson (1955) CA

 

 

^[General Defences - duress of circumstances - driving - early example of defence not raised - cited in Re: A Children]
D was seen by the Leeds police in a motor car. The car followed an erratic course for about 300 yards down a hill and was then steered by D on to a grass verge.
 

D’s case was that the car had been driven by his brother-in-law. D said that he himself had fallen asleep. He woke up and found that the car was moving on its own its own. He immediately grabbed the steering wheel and tried to control the car. He did not put on the handbrake because of the greasy condition of the road.
 

D was so drunk that he was incapable of having proper control of the car. He was convicted of driving the car when under the influence of drink.
 

Held: On the facts of the case appellant was ‘driving’ the car within the meaning of that section, and the conviction must be affirmed.
 

Guilty

Comment:  Nobody suggested that he was entitled to rely on a defence of necessity or duress of circumstances.

Leigh v Gladstone (1909) TLR

[General Defences - duress of circumstances -necessity - to save life]

It was not assault to force-feed a prisoner (a sufraget) against her will if it was to save her from injury.

 

Martin, R v (1989) CA

 

 

R v Martin (1989) CA

[General Defences - duress of circumstances -necessity]

Disqualified driver drove stepson to work (had overslept) fearing he would lose his job that would cause wife to commit suicide.

 

Held: "duress of circumstances" should have been considered as a defence.

Not guilty

Melchett, R v (2000) Norwich Crown Court

 

R v Melchett (2000)

News report here

[General Defences - duress of circumstances -necessity - pressure groups destroy or damage]

D, The Lord Melchett and 27 Greenpeace members destroyed GM crops arguing they had acted to protect the environment.

 

Not guilty by a jury

Mouse's Case (1608) KB

 

[General Defences - duress of circumstances -necessity - damage to property acceptable to save life]

A barge en route from Gravesend to London was in danger of sinking when a storm started. Some of the fifty passengers threw various items overboard to lighten the ship.  Mouse was the owner of some of this cargo, and brought a civil action for trespass to goods.

 

Held: Their actions had been justified by the danger to life.

Perka v The Queen (1984) Supreme Court of Canada

[General Defences - duress of circumstances -necessity]
The Supreme Court of Canada acknowledged the existence of the defence of duress of circumstances in general terms.

 

Dickson J

"If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly and scrupulously limited to situations which correspond to its underlying rationale".

Pommell, R v [1995] CA

 

 

 

R v Pommell [1955] CA

[General Defences - duress of circumstances -necessity]

D found in bed with a loaded machine gun.  D claimed that he had taken it off another man to prevent him using it, and was going to take it to the police in the morning. 

 

Held:  He should have been allowed to raise the defence of duress of circumstances, but that the jury would need to consider his behaviour with the gun to decide if the duress had ceased. 

 

A re-trial was ordered

Quayle and others and AG Ref (No 2 of 2004) [2005] CA

 

Whole case here

 

Red triangle indicating important information

[Defences – medical necessity (duress of circumstances) – not available for medicinal use of cannabis – judicial law-making – principle not policy]
DD (six conjoined cases) smoked cannabis to relieve pain, another D imported cannabis for the benefit of others who used it for medicinal purposes or to ease the passage to death. There was no medical dispute as to its painkilling properties in some cases.

Held: There is no common law defence of “medical necessity”, nor do the various statutes provide for a defence. Doctors are not permitted to prescribe cannabis except for certain trials, it would not be appropriate therefore for individuals to make cannabis available for themselves or others.

For the purpose of the defence of necessity (duress of circumstances), there is a requirement of threat of serious injury, which would not include suicide by the defendant.

Lord Justice Mance delivering the judgment of the court stated that the judgment was based on established principles and not policy; he quoted from McLoughlin v O'Brien [1983] “…If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.”

Guilty

Comment: This case was apparently referred to the Court of Appeal by the highest level within the CPS.
Cannabis trials are only available for multiple sclerosis (MS) sufferers, which did not apply to any of the defendants.
It is possible that juries will still acquit in some cases even though no such defence exists; if raised the ‘defence’ should not be allowed to go to the jury.
This case has not gone to the House of Lords.

 

The common law defence of necessity by extraneous circumstances is not available where its role would be to legitimise conduct which is contrary to the clear legislative policy and scheme adopted in relation to controlled drugs.

Re A (Children) (2000) CA

 

[General Defences - duress of circumstances -necessity - distinction between innocent life and one that threatens life of another]

Doctors sought the leave of the court to separate conjoined twins, as the separation was necessary to save the life of one of them.  If they remained conjoined both would die.  Jodie had a good chance of a fairly "normal" life.  Mary was using Jodie’s heart and lungs; Mary had no prospect of an independent life. If they were separated Mary would immediately die.

 

Brooke LJ, quoting Sir James Stephen more than a hundred years earlier;

There are three conditions for necessity to operate as a defence:

  1. the act is needed to avoid inevitable and irreparable evil,

  2. no more should be done than is reasonably necessary for the purpose to be achieved, and,

  3. the evil inflicted must not be disproportionate to the evil avoided.

These conditions were satisfied in the instant case.

 

The decision in R v Dudley & Stephens (endorsed by the House of Lords in R v Howe was distinguishable: that case involved the taking of an innocent life, while in the instant case the life to be taken was that of a person who (although morally blameless) was slowly killing her sister and who was already "designated for death".

 

Declaration approved, operation carried out Mary died Jodie is living a normal life at the time of writing.

Also here

Rodger & Rose, R v [1998] CA

[General Defences - duress of circumstances - necessity – circumstances must be 'external']

D’s claimed that they had been forced to escape from prison because otherwise they would have been driven to commit suicide as a result of the extreme depression they were suffering. 

 

Held: For the defence to apply, the "circumstances" had to be external to the actual offender.

 

Guilty

Southwark BC v Williams [1971] CA

 

 

 

 

[General Defences - duress of circumstances -necessity - policy issues]

A homeless family squatted in an empty Council house, and resisted the Council's efforts to evict them.

 

Held: Lord Denning MR;

If hunger were allowed as an excuse for stealing, or homelessness as a defence to trespass, it would open a door through which all kinds of lawlessness and disorder would pass; each would say his need was greater than the next man's.

 

Council’s action succeeded

Stephens, R v (2002) Carmathen Magistrates (The Times 10 Oct 2002)

 

 

R v Stephens (2002)

 

[General Defences - duress of circumstances -necessity - possessing cannabis - on the grounds that it was used for medical purposes]

D aged 45 possessed 55gm of cannabis which helped him reduce his dependence on morphine to ease the pain of cervical spondylosis a severe spinal disease

 

Held:  Brad Stephens acquitted on the evidence

The cannabis was however, ordered to be destroyed.

 

Not guilty
Comment:  
It is thought to be the first time that a legal defence of necessity has been used successfully in such circumstances.

Willer, R v (1986) CA

 

 

 

 

R v Willer (1986) CA

 

[General Defences - duress of circumstances -necessity - escape from gang]

D drove ‘recklessly’ at about 10 mph through a pedestrian precinct to escape from a gang threatening violence to him and his passengers.

 

Held:  Duress should in any case have been left to the jury. This was not the usual sort of duress - the gang had not told D to drive on the pavement - but duress of circumstances could be used even where necessity could not.

 

[Necessity – if it ever had existed - has been largely replaced by the new defence of "duress of circumstances". This case was the first recognition as such]

 

Not guilty

Also here

 

 

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