|"I had to drive, an elephant was attacking me outside the pub."|
There is a common belief among solicitors and barristers that if you get behind the wheel of a car while you are over the drink driving limit then you have no defence to a charge of drink driving. I disagree with that. Today, I want to look at the defence of duress and whether that can assist a person accused of drink driving.
What is duress?
Duress is a defence to all crimes except murder, attempted murder and treason.
To rely on duress, a defendant must show that he committed the offence because he feared death or really serious injury (this is a subjective test) and that a sober person of reasonable firmness, who shares the defendant’s characteristics, would have acted as the defendant did (this is an objective test). Thus, in DPP v Mullally, there was no complaint that the magistrates had considered the reasonable person to have been the victim of domestic violence at the hands of multiple partners.
The defendant can rely on duress if he honestly believed himself to be in immediate or imminent danger, even if it emerges that his belief was mistaken.
Duress versus Emergency
Historically it was always thought that duress was not available in drink driving cases. Even today, many solicitors will tell you that it is not available. I’ve never been sure why people think this but I suspect the answer is because of the special reason of “emergency”.
Emergency is a special reason for avoiding disqualification from driving. Emergency is not a defence and cannot prevent a person being convicted – often though that is the important thing because even if you keep your driving licence here you may find that other countries ban you from driving as part of your visa to enter that country, the US is a good example of a country that does this.
A typical emergency situation will involve somebody fleeing an attack or rushing to give aid and assistance to somebody else. It is, I think, the use of emergency for defendants running from a serious threat that has caused people to think that emergency replaces duress in drink driving cases.
Emergency and duress sound similar but there are very important differences that mean it is not possible to say the existence of emergency as a special reason bars the use of duress as a defence. The key difference is that to establish an emergency there is no need to establish a threat to life or a threat of really serious injury. For example, in DPP v Enston the magistrates found a special reason where a man drove drunk because a woman threatened to make a false allegation of rape against him if he refused to drive. The prosecution appealed but the High Court upheld the magistrates’ decision and said that a personal crisis was capable of amounting to an emergency and thus a special reason. Clearly, there was no threat to Mr Enston’s life or any threat of serious injury to him and so he could not have been acquitted on the basis of duress.
So, is duress available in drink driving cases?
The answer to this question is clearly a resounding, “yes”.
In 1989, Mr Justice Tudor Evans and Lord Justice Parker sat together in the High Court hearing the case of DPP v Jones and were asked whether magistrates were correct in law to find that the defence of duress was available to the defendant. Tudor Evans, J. said, “I can quite follow how the defence of [duress] was available for the defendant …” That’s nice and clear, except that Parker, LJ decided to stick his oar in by saying that the court had not, in fact, considered whether duress was available and nobody should assume otherwise – maybe the two judges should have discussed the case a little more before giving judgment. Mr Jones ultimately lost his case not because duress wasn’t available but because he had continued to drive far longer than was necessary to escape the threat he faced.
By 1991, it seems things have become a little clearer in the minds of the High Court judiciary. Lord Justice Mann sat with Mr Justice Roch hearing the case of DPP v Bell. It was such an unattractive defence that the case was heard in three different courts. Mr Bell had gone out drinking with the intention of driving home while he was above the drink driving limit. On his way to his car, trouble broke out and he found himself outnumbered. He ran with friends to his car and drove to escape the trouble. He stopped a short distance up the road where police eventually found and arrested him. In the magistrates’ court, he was convicted because he had always intended to drive home. Mr Bell appealed to the Crown Court who acquitted him saying his intention was irrelevant. The prosecutor appealed to the High Court arguing that somebody who had always intended to drink and drive should not get away with it just because he involved himself in trouble before he had a chance to commit the offence. The High Court was clear; duress was not only available to Mr Bell but he had established sufficiently well that his fear of injury or death was genuine. He had not driven further than was necessary to escape that threat and, as such he was not guilty of drink driving.
Despite DPP v Bell being decided in 1991 and the decision being reported in 1992 the idea that duress is not available to drink driving persists. I know this because recently a defendant came to me saying that he attended court alone to plead not guilty on the basis of duress and had his case adjourned for him to obtain advice, it would seem because the legal adviser to the court did not believe duress applied to drink driving cases!
As always, having a solicitor who knows the law is invaluable when attending court.
What do I need to prove to win with duress?
In theory, absolutely nothing. Once duress is raised it is for the prosecution to disprove it not for the defendant to prove it. In practice, the court will expect you to establish duress is available before the prosecution is required to disprove it.
In 2006, Lord Justice Latham and Mr Justice Fulford considered the case of DPP v Mullally. The case involved a woman rushing to the aid of her sister who she believed to be in danger from her abusive partner. Ms Mullally was forced to flee said abusive partner and, after running a distance up the street, got into her car and began driving away. She was made aware that police had attended and that the threat against her no longer existed. Instead of ceasing to drive, she continued driving home where she was arrested. Rather sweetly the magistrates acquitted her on the basis that although the police were on hand, “… it would not be reasonable to expect a woman and her daughter in pyjamas and dressing gowns to seek refuge at 3am from a stranger, albeit a police officer.” I think the magistrates must have been from a gentler time, I cannot imagine any London benches thinking that way. Unsurprisingly, the High Court disagreed with the magistrates and directed that the magistrates court convict Ms Mullally. But, in doing so they gave us three important questions that must be asked and disproven by the prosecution in each drink driving duress case:
1. Was the defendant impelled to act as she did as a result of a reasonable (even if mistaken) belief of an imminent threat of death or serious physical harm?;
2. Would a person of reasonable firmness with the same characteristics as the defendant have been driven to act in the same way?
3. On an objective viewpoint, did the threat still exist by the time the defendant ceased driving?
It’s worth noting that in point 2 a court is likely to view the person of reasonable firmness as being sober – drunken reasonable people are few and far between in courtrooms.
As I have said, it is for the prosecution to disprove any one of these questions to secure a conviction. But, in reality, the court will expect to hear evidence, usually from the defence, to establish duress in the first place.
In conclusion, we can see that duress is a defence that is available if you have been accused of drink driving. It is one that the prosecution must disprove but the courts will almost certainly expect to hear evidence from you to establish that you honestly believed there was a threat to you and that you drove no further than was necessary to mitigate that threat.