Defence of Necessity has a Place in Criminal Law
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.’
Lord Lane LCJ, Simon Brown, Roch JJ
[1989] 1 All ER 652, [1988] 88 Cr App Rep 343, [1988] EWCA Crim 2
Bailii
England and Wales
Citing:
Approved – Regina v Graham (Paul) CACD 18-Dec-1981
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 28-Jul-1988
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
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 . .
Cited by:
Approved – Regina v Cairns CACD 22-Feb-1999
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 17-Dec-1998
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 16-Oct-2003
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 21-Jul-2004
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 22-Sep-2000
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 28-Sep-2001
Duress as Defence not closely Defined
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 16-May-1995
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 27-May-2005
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 29-Mar-2006
Domestic Offence requires Domestic Defence
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 11-Feb-2003
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 29-Feb-2012
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 . .
Lists of cited by and citing cases may be incomplete.
Crime, Road Traffic
Leading Case
Updated: 11 November 2021; Ref: scu.186846