DPP v Tomkinson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,MR JUSTICE POTTS |
| Judgment Date | 16 February 2001 |
| Neutral Citation | [2001] EWHC 182 (Admin) |
| Docket Number | CO 3419/00 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2001 |
[2001] EWHC 182 (Admin)
IN THE HIGH COURT OF JUSTICE
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Latham and
Mr Justice Potts
CO 3419/00
MR P TAYLOR (instructed by CPS Stockport, Sale Branch, Manchester) appeared on behalf of the Claimant.
MR J JONES (instructed by JB Warburton, Mobberley, Cheshire WA16 7NS) appeared on behalf of the Defendant.
I will ask Potts J to give the first judgment.
The Appellant appeals against the decision of the Trafford Justices to dismiss an information laid against the Respondent alleging an offence of driving a motor vehicle having consumed excess alcohol contrary to section 5 of the Road Traffic Act 1988.
The Respondent raised the defence of duress of circumstances and the Justices accepted the submissions made on her behalf in respect of that defence.
The questions for the Court are as follows:
“1. Whether the justices were correct in concluding that a defence of duress was available to the Respondent to excuse her from driving a motor vehicle when the quantity of alcohol in her breath exceeded the prescribed limit when it was the case that she had driven a motor vehicle after the person who had assaulted her had left the premises where the assault had occurred and thereafter had gone to hospital to obtain medical treatment thereby removing any immediate threat of death or really serious injury to her?
2. If the first question is answered affirmatively, were the Justices correct in concluding that a defence of duress was available to the Respondent having regard to the fact that she drove her motor car when the quantity of alcohol in her breath exceeded the prescribed limit for a distance of 72 miles from Harrogate to Sale, where it concluded?
3. If the second question is answered affirmatively, were the Justices correct to acquit the Respondent of driving a motor vehicle when the quantity of alcohol in her breath exceeded the prescribed limit?”
The onus of disproving duress rested on the prosecution. It was for the prosecution to rule duress out of the case and it is necessary to look at the charge. The Respondent:
“On 1st January 2000… at Sale, Greater Manchester drove a motor vehicle… on a road, namely Allgreave Close, after consuming so much alcohol that the proportion of it in her breath, namely 52 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit contrary to Section 5(1)(a) of the Road Traffic Act 1988…”
It is to be noted that the Respondent gave a specimen at 9.42 a.m. on 1st January, after she had driven some 72 miles. At the time of the offence, the Respondent had been living in Harrogate. The Justices considered the information on 28th June 2000 and found the following facts:
“(a) The defendant was new to the area where she was living. She drank one bottle of Stella Artois lager at about 4-5 p.m. on New Year's Eve. She and her husband went to a neighbour's party at about midnight and consumed a large glass of red wine. They both returned home at about 2-3 a.m. when the defendant's husband, who was drunk, accused her of flirting at the party and ‘just flipped’.
(b) The defendant was violently assaulted by her husband and sustained the following injuries: soreness to her skull from having her head banged on the floor, scratches to her neck from a vegetable knife, bruising to her hands, hips and shoulders and shins, a swollen lip and a fractured nose.
(c) The defendant was in a very poor emotional state.
(d) The injuries were caused by the defendant's husband by either karate kicks or chops and by the use of a vegetable knife.
(e) The defendent's husband had also threatened the defendent by pushing an empty Stella Artois bottle to her face and a knife had been held to her ribs and then to her neck, making the defendant fear for her life.
(f) The defendant's husband had physically harmed himself by slashing his arms with a knife and had trodden in bare feet on broken glass from a bottle. He had moved upstairs then reappeared with a pattern of ‘O’ and ‘X’ cut on his arms and blood smeared on his face and he said he would call the police and tell them she had caused the injuries so she would be arrested.
(g) He told the defendant that he had telephoned for a taxi to take him to hospital and that he had called the police, who were on their way.
(h) He smashed the house telephone and the defendent's mobile telephone and took all the money and credit cards from her purse.
(i) He had eventually left the premises and had gone to hospital by taxi. On leaving, he said ‘you had better be gone when I get back’.
(j) The defendant thought the police were coming and waited until 5 or 6 a.m. When they did not arrive, she would have contacted them herself but both telephones were inoperable. She decided she had to leave.
(k) The defendent had only recently moved into the area of Harrogate having got married two months previously. She was not familiar with the surrounding area. She did not work in Harrogate but in Sale and was still ‘new’ to that locality and did not know where the local police station was situated.
(l) The defendant had no money with her and going to a hotel at that time of the year at that hour of the day was not an option.
(m) The defendant did not know her neighbours having only met them for the first time earlier that evening.
(n) The defendant believed she was not over the limit to drive and therefore had no reason to suppose she should not drive. The defendant believed the only safe place was her home in Sale where she knew her children would be. She drove from Harrogate to Sale.
(o) When she commenced her journey at about
6.30 a.m. on 1st January 2000, the defendant was frightened for her life.
(p) The weather conditions were extremely poor, it being very foggy. The defendent drove slowly.
(q) At 09.42 hours on 1st January 2000, at Altrincham Police Station, the defendant provided 2 specimens of breath the lowest reading of which was 52 milligrammes in 100 millilitres of blood.”
At the conclusion of the Respondent's case, it was contended on behalf of the Respondent that the defence of duress was open to her.
The Court was referred on the Respondent's behalf to Stone's Justices' Manual 1999, Volume 1 at 1/307. It was submitted that the defence of duress was founded on a concession to human frailty and that, given all the circumstances, it was reasonable for the Respondent to have acted as she did.
It was contended by the Appellant that the defence of duress was not open to the Respondent. The court was referred to Wilkinson's Road Traffic Offences, 17th Edition at 4.322 —32 and the following cases: DPP -v- Bell, DPP -v- Jones and DPP -v- Harris.
The Justices formed the conclusion that Mrs Tomkinson's case could be distinguished from those relied upon by the Appellant. They purported to apply the principles identified in the Director of Public Prosecutions -v- Harris, and they:
“…were of the opinion that the respondent had acted as she did because she had suffered prolonged a physical attack which impelled her to believe that the subsequent threat made by her husband was enough for there to be good cause to fear that death or serious physical injury would result if she were to remain at the premises.”
The Justices:
“…were also convinced that a sober person of reasonable firmness, sharing the respondent's characteristics and facing the same set of circumstances, would have responded to that situation in the same manner as the respondent had, given all the facts surrounding the case.”
Thus, the Justices concluded that:
“Given that in our opinion these facts presented before us could be distinguished with those cases relied upon by the appellant and having applied the test summarised in DPP -v- Harris, we found the defence of duress did apply and therefore acquitted the respondent of this charge.”
Duress, which is essentially a defence of necessity, is defined in the current 2001 Edition of Archbold at paragraph 17/121.
After reference to the leading case of Lynch -v- Director of Public Prosecutions for Northern Ireland [1975] AC 653 and the speech of Lord Simon of Glaisdale at page 686;
R -v- Howe [1987] AC 417 and R -v- Graham 74 Crim App R 235, the learned editors state:
“From these sources, the following test can be advanced; was a threat of physical harm to the person (including, possibly, of imprisonment) made, which was of such gravity that it might well have caused a sober person of reasonable firmness sharing the defendant's characteristics and placed in the [defendant's] situation to act… as the defendant acted?”
At paragraph 17/122, the learned editors state:
“It is essential that the threat should have been effective at the time when the crime was committed… it is always open to the prosecution to prove that the defendent failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective; upon that being...
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