Court of Appeal

Published date01 August 1989
Date01 August 1989
DOIhttp://doi.org/10.1177/002201838905300303
Subject MatterArticle
COURT
OF
APPEAL
RECKLESS DRIVING AND ALCOHOL
R. v. Griffiths (Gordon Rupert)
The
appellant «1988) 88
Cr.App.R.
6), who
had
been drinking
excessively, drove his truck on the wrong side of the road and col-
lided with acar, whose driverwas killed in the collision. He appealed
to the
Court
of Appeal against his conviction of causing death by
reckless driving, contraryto Section 1 of the
Road
Traffic Act 1972,
assubstitutedbysection50(1)
ofthe
The
Court of Appeal approved R. v. Madigan (1982) 75
Cr.App.R.
145, in which it was held that juries should be directed
in the terms set out by Lord Diplock in R. v. Lawrence
[1982]
A.C.510.
In this case the jury
had
properly concluded that the first limb
of the Lawrence test
had
been satisfied.
From
this the jury could
infer
that
the defendant
had
one or
other
of the two states of mind
identified in Lawrence, paying due regard to any explanation of
the
driver, e.g. that his attention
had
been distracted by a wasp
or loud bang, or
that
there
had
been amechanical failure in the
steering.
The
court said that if a person takes alcohol in such quantities
that
he knows or must know that his driving ability is substantially
impaired and he chooses to drive, then he can be guilty of this
offence unless there is some
other
explanation.
In R. v. Caldwell [1982]
A.C.
341, the defendant was intoxicated
at the time of the offence, and it would appear that
Lord
Diplock
felt this would have no effect on the question of
whether
the
defendant was reckless or not. Subsequently, it has been felt
that
intoxication has no bearing on the question of recklessness.
If
the
present case is implying a subjective element in
the
mens rea, this
is more lenient to defendants
than
the House's directions in
Caldwell and Lawrence.
Ruth Harrison
290
Court
of
Appeal
NECESSITY AS A DEFENCE
R. v. Martin
The
latest stage in the recent development of a general, if limited,
defence of necessity is
the
important ruling in R. v. Martin
[1989]
1 All
E.R.
652, where the Court of
Appeal
set
out
the
principles
established to-date concerning this defence in the criminal
law.
The
defendant was charged with driving whilst disqualified,
contrary to section 99(b) of the
Road
Traffic
Act
1972.
He
wished
to raise
the
defence of necessity on
the
basis that his wife had
threatened
to commit suicide if he did
not
drive
her
son to work.
The
latter
had
overslept to
the
extent that he was bound to be
late for work
and
at risk of losing his
job
unless, so it was asserted,
the defendant drove him to work.
The
defendant's wife, who
had
ahistory of suicide attempts, was in a greatly distressed state and
the
defendant produced astatement from a doctor to
the
effect
that
in
the
light of his wife's mental state it was likely
that
she
would have attempted suicide if
the
defendant
had
not driven
her
son to work.
The
defendant's case was
that
he genuinely,
and
reasonably, believed
that
his wife would carry
out
her
threat
unless
he complied with
her
demand. Despite his disqualification, he
therefore drove
her
son towards work until apprehended by the
police.
Before arraignment, the trial judge, ruled that
the
offence in
question was an absolute offence and therefore once it was
established
that
the defendant
had
been
driving and
that
he was
disqualified at the time, the offence was established
and
the
defence of necessity was not available to the defendant in
the
above circumstances. In consequence of that ruling
the
defendant
pleaded guilty and was convicted.
He
appealed against conviction
to
the
Court of
Appeal
on a point of law, i.e. whether the defence
of necessity was available to a charge of driving whilst disqualified
when
that
driving occurs in circumstances such as
the
defendant
had
contended arose in his case. He contended
that
the
trial
judge's ruling was erroneous and
had
deprived him of a valid
defence.
Allowing
the
appeal
and
quashing the conviction,
the
Court of
291
Journal
of
Criminal Law
Appeal ruled that the defence of necessity should not have
been pre-empted by the incorrect ruling by the trial judge. The
authorities on the defence were now clear and their effect was to
be found in the judgment of the Court of Appeal in R. v. Conway
[1988]
3W.L.R. 1238. The principles, the court in the present
case stated, could be summarised as follows: first, English law did,
in extreme circumstances, recognise a defence of necessity.
It
most
commonly arose as duress, that is pressure on the accused's
will from the wrongful threats or violence of another. Equally,
however, it could arise from other objective dangers threatening
the accused or others, when it was known as "duress of circum-
stances".
Second, the defence was available only if, from an objective
standpoint, the accused could be said to have acted reasonably
and proportionately in order to avoid a threat of death or serious
injury.
Third, when the defence was open to the accused on his account
of the facts, the issue should be left to the jury who should be
asked to determine two questions: (1) whether the accused had or
might have been impelled to act as he had 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;
(2) if so, whether asober person of reasonable firmness, sharing
the characteristics of the accused, would have responded to that
situation by acting as the accused had done?
If
the answer to both
questions was in the affirmative, then the jury should acquit
because the defence of necessity would have been established.
That the defence was available in cases of reckless driving, the
Court noted, was established by R. v. Conway (above) and R. v.
Willer
[1986]
83 Cr.App.R. 225, Conway was also authority for
the proposition that the scope of the defence was no wider for
reckless driving than for other serious offences. The court in the
present case could see no material distinction between offences of
reckless driving and driving whilst disqualified so far as the
application and scope of the defence was concerned, nor could it
see any distinction in principle between various death
threats-it
mattered not whether the risk of death was by murder, suicide or
accident.
It
followed from this, the court concluded, that the trial judge
292

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