We have today won a case advancing duress of circumstance or necessity as it is sometimes called. It is a complete defence which is not often explored or advanced.
I have won a number of cases advancing this defence but in the most recent case we used the defence for an offence of driving with excess alcohol. Our client had driven whilst over the limit to attend to his son who had been involved in a car accident 2 miles away. He instantly made the decision to drive in order to avoid serious injury to his son.
The police arrived 40 minutes after he had arrived at the scene whereupon they breathylsed our client and his son. Chiltern Law and Mr Stuart Jessop (Counsel) reviewed the authorities, prepared a skeleton argument and advanced the argument today at Milton Keynes Magistrates Court. The argument centred around the decision of R v Martin 1989: The appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to commit suicide if he did not drive their son to work. His wife had attempted suicide on previous occasions and the son was late for work and she feared he would lose his job if her husband did not get him to work.
The appellant pleaded guilty to driving whilst disqualified following a ruling by the trial judge that the defence of necessity was not available to him. He appealed the ruling. Simon Brown J: “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 upon 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”.
Secondly, 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, may 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.”