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| "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.
