Divisional Court
| DOI | 10.1350/jcla.2007.71.3.193 |
| Date | 01 May 2007 |
| Published date | 01 May 2007 |
| Subject Matter | Divisional Court |
Divisional Court
Duress: Objective Test
Director of Public Prosecutions v Mullally [2006] EWHC 3448 (Admin),
[2006] All ER (D) 49 (Nov)
M, a victim of domestic violence at the hands of three of her husbands,
claimed that she feared for her sister’s safety due to the conduct of her
partner. In the early hours of the morning, wearing only pyjamas and a
dressing gown, she drove to her sister’s house. On arrival, she was
assaulted and threatened with injury. She telephoned the police but left
with her daughter before the police arrived at approximately 3 am.
Whilst on the way home, she was informed that the police had arrived
at her sister’s house. She continued on her journey whereupon she was
stopped by the police who breathalysed her. It was found that, whilst ‘in
charge of a motor vehicle on a road or other public place’ the proportion
of alcohol in her breath exceeded the prescribed limit contrary to
s. 5(1)(a) of the Road Traffic Act 1988.
At first instance, the defendant put forward a defence of duress. The
court stated that the defence could be founded if (1) the defendant had
genuinely believed that there existed an imminent threat of physical
harm and (2) a reasonable man with the characteristics of the accused
would have reacted in the same way and would therefore have con-
tinued driving. The defendant was acquitted. The prosecution appealed
to the Divisional Court by way of case stated.
H
ELD
,
ALLOWING THE APPEAL AND REMITTING THE CASE TO THE JUS-
TICES WITH A DIRECTION TO CONVICT
,the issue for the court was whether
a sober person of reasonable firmness with the accused’s characteristics
would have driven in the same way. The justices had erred in determin-
ing that the defendant’s response was objectively reasonable as a reason-
able person would have concluded (1) that the police would protect the
defendant as there was no reason to suggest otherwise and (2) that there
was no suggestion that the defendant’s sister’s partner was armed.
C
OMMENTARY
Whether or not duress could or should operate as a defence to criminal
charges has raised many issues over the years, the difficulties probably
heightened by the fact that a successful pleading of the defence leads to
a complete acquittal. In general, the applicability and restrictions on the
defences of duress by threats, duress of circumstances and necessity and
indeed, the definitions and categorisations of these defences, have been
the subject of extensive judicial discussions. Whether or not duress by
threats and duress of circumstances are seen as defences in their own
right or simply as covered by the umbrella of the defence of necessity,
the essence of the defences are the same—the defendant committed an
offence as a result of a genuine belief in an imminent threat of death or
serious injury and that a sober person of reasonable firmness with
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