KembaraXtra-Case Law- Davis (1994) - Driving with Excess Alcohol & Duress Defence
Case Overview

• Case Name: Davis (1994)
• Charge: Driving with excess alcohol.
• Defendant's Situation:
  • Suffering from stress and anxiety.
  • Accepted an invitation for a meal with a male acquaintance.
  • Subjected to an unwelcome homosexual advance by the acquaintance.
  • Ran out of the flat and drove away.

Legal Issue

• Application of the defence of duress in the context of driving with excess alcohol.
• Specifically, the subjective vs. objective elements of the duress test.

Lower Court Decision

• Magistrates applied a subjective test to determine if the events caused the defendant to lose control of his will.
• Defendant was acquitted.
• Prosecution appealed.

Court of Appeal Decision (Held)

• Duress Defence: While subjective, it has objective elements, as per the test laid down in Graham (see 12.1.2).
• Magistrates' Error:
  • Overlooked the objective question: whether a reasonable sober person would have responded to the threats in the same way.
• Analysis of Fear:
  • Defendant was only in fear in the flat.
  • He was not in fear for his life or of serious injury.
  • Magistrates did not find he was still in fear whilst driving two miles down the road.
• Conclusion on Duress:
  • Had an objective test been applied, it would have been impossible to conclude that the threat was still operative when the defendant was driving the car.

Key Takeaways

• The defence of duress is not purely subjective.
• A reasonable person test (objective element) is crucial.
• The threat must be operative and ongoing at the time of the offence.
• Mere fear experienced in a specific location does not automatically extend to subsequent actions taken away from that location.

​KembaraXtra-Case Law- Bell (1992)
​This note consolidates the key legal principles and factual application demonstrated in the case of DPP v Bell (1992) concerning the defence of duress of circumstances.

Case: DPP v Bell (1992)Facts of the Case:

• The defendant (D) was driving a car with a blood alcohol level exceeding the legal limit.
• D was being pursued by an unknown party.
• As a direct result of this pursuit, D drove his car and ran over the victim (V).
• D was convicted of driving with excess alcohol.
• D appealed his conviction, arguing that he should have been able to rely on the defence of duress.

Legal Issue:

• Could the defendant successfully raise the defence of duress, specifically duress of circumstances, to excuse his commission of the offence of driving with excess alcohol?

Decision of the Court (Held):

• General Principle of Duress: The defence of duress is applicable where the fear engendered by threats causes an individual to lose complete control of their will.
• Application to Duress of Circumstances: The court allowed the defence of duress of circumstances to be raised by D.
  • Reasoning: D was in a state of terror due to the pursuit when he decided to drive off in his car. This fear constituted the "circumstances" that led to his actions.
  • Limitation of the Defence: Crucially, D stopped driving as soon as he was safe from pursuit. This indicated that he had only committed the offence while the threat was operative (i.e., the fear of pursuit was ongoing). Once the threat subsided, his voluntary control was regained, and the offence was no longer being committed under duress.

Key Takeaways and Study Points:

1. Understanding Duress of Circumstances:
   • This defence arises not from direct threats from another person, but from the circumstances themselves compelling the defendant to commit an offence.
   • The core element is fear that causes a loss of complete control of will.
2. Elements Required for Duress of Circumstances (as evidenced by Bell):
   • Objective Threat: There must be a threat of death or serious injury (or equivalent in other contexts) posed by circumstances. In Bell, this was the terror of the pursuit.
   • Subjective Fear: The defendant must have genuinely feared for their safety due to these circumstances. D was described as being "in terror."
   • Causation: The fear must be the operative cause of the defendant's actions. D drove because he was being pursued.
   • Voluntary Compliance: The defendant must have reasonably believed that their actions were necessary to avoid the threatened harm.
   • No Reasonable Escape: It is generally required that there was no safer or reasonable alternative course of action available to the defendant. While not explicitly detailed as a failed element in Bell, the cessation of driving once safe highlights this principle.
   • Constituted Offence: The offence committed must be one that the law recognizes as being capable of being excused by duress. Driving offences can be subject to this defence under specific circumstances.
3. The "Operative Threat" Principle:
   • The defence of duress (both of persons and of circumstances) is only available while the threat is actively operating on the defendant's mind and forcing them to commit the offence.
   • Bell's successful use of the defence was significantly influenced by the fact that he ceased driving as soon as he was safe. This demonstrates that the duress was temporary and directly linked to the immediate danger. If he had continued driving after the pursuit had ended, the defence would likely have failed.
4. Distinction from Other Defences:
   • Note how duress of circumstances differs from other defences. It is not about self-defence (which requires an imminent attack) or necessity (which is a broader defence of choosing the lesser of two evils, often without immediate personal threat).

How to Study This Content:

• Define Duress of Circumstances: In your own words, explain what duress of circumstances is and how it differs from duress of persons.
• Apply to Bell: Reconstruct the facts of Bell and explain precisely why the court found duress of circumstances applicable.
• Identify Key Elements: List and explain the essential elements of the defence as demonstrated by this case.
• Analyze the "Operative Threat": Explain the significance of the phrase "while the threat was operative" and its implications for the duration of the defence.
• Hypothetical Scenarios: Consider hypothetical situations where duress of circumstances might arise. Would the defence apply in each scenario? Why or why not, based on the principles from Bell? For example:
  • What if D had driven off because he was scared of a dog chase?
  • What if D had continued driving for several miles after the pursuit ended?
• Memorize the Case Name and Year: DPP v Bell (1992).

​KembaraXtra-Case Law-Abdul-Hussein and Others (1999) CA: Defence of Necessity in Hijacking Cases
​I. Case Background

• Defendants (Os): Shi'ite Muslim fugitives from Iraq.
• Situation in Sudan:
  • Overstayed residence permit.
  • Fear of Deportation: Back to Iraq, where they believed they would face execution.
• The Offence: Hijacked a plane bound for Jordan, using imitation knives and grenades to threaten the crew.
• Outcome of Hijacking: Plane landed at Stansted airport; after 8 hours of negotiation, passengers and crew were released, and Os surrendered.
• Charge: Hijacking.
• Defence Raised: Necessity.

II. Trial Judge's Ruling

• The defence of necessity was not left to the jury.
• Reasoning: The threat faced by the defendants was not sufficiently immediate.

III. Court of Appeal (CA) Decision

• Holding 1: Defence of Necessity SHOULD have been available.
  • Generally applicable to the offence of hijacking.
  • Balancing Act Required:
    • Terror induced in passengers.
    • Threat that the defendants were avoiding.
  • Key Element for Necessity:
    • Imminent Danger: Had to operate on the defendant's mind at the time of the offence.
    • Overbearing Will: The danger had to be such that it overbore the defendant's will.
    • Not Necessarily Immediate Execution: Defendant's mind must be so affected by the perceived danger that their will is overborne, even if direct execution isn't instantaneous.
• Holding 2: Urgent need for Codification.
  • The CA reiterated the call for urgent codification of the defence of necessity.
  • Purpose of Codification: To clearly define its precise requirements and parameters.

IV. Key Legal Principles Highlighted

• Defence of Necessity: A potential defence to criminal charges.
• Elements of Necessity (as interpreted by CA):
  • Threat of danger.
  • Necessity to act to avoid the danger.
  • The danger must be such that it overbears the defendant's will.
  • The danger's impact on the defendant's mind is crucial.
• Balancing of Interests: In cases like hijacking, the court must balance the harm caused by the offence against the harm being avoided.
• Codification: The importance of clear legal definitions for complex defences.

​KembaraXtra-Case Law- Hudson and Taylor (1971) - Duress and the Opportunity to Escape Danger
​This case is a pivotal authority on the defence of duress in criminal law, specifically concerning the requirement for the defendant to have had an opportunity to escape the threatened harm.

Key Case: Hudson and Taylor (1971) CABrief Factual Summary:

• Two female defendants were convicted of perjury.
• They acted as prosecution witnesses in a criminal trial.
• Their defence was that they committed perjury under threat of violence.

Central Legal Issue:

• Can a defendant rely on the defence of duress if they had an opportunity to extricate themselves from the danger, or seek protection from the authorities, before committing the criminal act?

The Court's Holding (Per Widgery LJ):
The court held that the defence of duress may not be available if the defendant had a reasonable opportunity to escape the threatened danger or to seek protection from the police.
Crucial Considerations for the Jury:
When determining whether a defendant had a reasonably available opportunity to avoid the danger, the jury must consider:

• The defendant's age: Younger defendants may be perceived as less able to take certain actions.
• The defendant's circumstances: This includes their general background, mental state, and any specific vulnerabilities.
• The risks involved in any course of action: The jury must assess whether attempting to escape or seek help would have exposed the defendant to further or greater harm.

Important Principle Derived from the Case:
The compelling nature of a threat is not diminished simply because the immediate execution of that threat could not occur within the courtroom, provided the threat could be carried out shortly thereafter (e.g., "the same night"). This means the threat of subsequent violence can still form the basis of a duress defence, but the availability of escape routes remains a critical factor.

To study this case effectively, consider the following:

1. Define Duress: What are the core elements of the defence of duress as it relates to this case?

​KembaraXtra-Case Law-Ortiz (1986)
​Case: Ortiz (1986) CA
Topic: Duress - Threats against Third Parties

Key Facts:

• The defendant (D), a Colombian national, entered England with his wife and child on holiday.
• A person referred to as "C" asked D to act as a drug courier.
• C threatened to cause serious harm to D's wife and child if D refused to comply.
• D took possession of the drugs.
• D was arrested by the police who discovered the drugs in his possession.

Legal Principle Established (Held):

• Threats directed at a third party are sufficient to establish duress. The threats made by C against D's wife and child were deemed adequate for a defence of duress to be considered.
• The threats do not need to be directed solely at the defendant. This case clarifies that the scope of duress can extend to threats against individuals closely connected to the defendant, such as their family members.

Points for Understanding and Study:

• Definition of Duress (in this context): Duress arises when a person commits an offence because they have been coerced by threats of death or serious injury to themselves or another person.
• Distinguishing Feature of Ortiz: Prior to this case, there might have been ambiguity about whether threats to family members would suffice. Ortiz definitively resolves this by confirming that threats to a defendant's wife and child are a valid basis for a duress defence.
• Implications: This ruling broadens the scope of the duress defence, recognising that an individual's coercive control can extend beyond direct threats to their own person.
• Elements to Prove for Duress (General): While not explicitly detailed in this excerpt, remember that for the defence of duress to succeed in general, the following are typically required:
  • There must have been a threat of death or serious injury.
  • The threat must have been to the defendant or to another person (as established in Ortiz).
  • The defendant must have reasonably believed the threat would be carried out.
  • The defendant must have had no effective avenue of escape from the threat.
  • The defendant's actions must have been a direct result of the threat.
• Application: Consider scenarios where a person is forced to commit a crime due to threats against their children, spouse, or other close relatives. This case provides the legal precedent that such threats can be the foundation of a duress defence.

Key Takeaway: The Ortiz case significantly expands the protection offered by the defence of duress by confirming that threats to a defendant's family members are just as potent in vitiating consent as threats directed at the defendant themselves.

​KembaraXtra-Case Law-DPP v Martin (1989)
​1. Case Citation: DPP v Martin (1989)
2. Offence Charged: Driving whilst disqualified.
3. Factual Background:

• Defendant (D): Charged with driving whilst disqualified.
• Wife's Condition: D's wife suffered from suicidal tendencies and had a history of suicide attempts.
• Son's Situation: D's son had overslept and was at risk of being late for work.
• D's Action: To prevent the son from losing his job, D drove his son to work. This was despite being disqualified from driving.
• Motive for Action: D's wife was significantly distressed and threatening suicide, which was the primary reason D acted.

4. Legal Issue: Whether the defence of duress of circumstances was available to the defendant.
5. The Defence of Duress of Circumstances:

• Definition: This defence arises when a person commits an offence under circumstances that have compelled them to act in a way they would not ordinarily do, due to an immediate threat of death or serious injury.

6. Court's Holding (Decision):

• The court allowed the defence of duress of circumstances.

7. Reasoning for the Holding:

• Threat of Death or Serious Injury: The court found that there was a threat of death or serious injury directed against D's wife. The wife's suicidal tendencies and threats constituted the "circumstances" under which D acted.
• Reasonable and Proportionate Response: For the defence to succeed, D must have acted reasonably and proportionately in order to avoid the threat. This implies that the action taken by D must have been a necessary and appropriate response to the imminent danger.

8. Key Takeaway Points for Study:

• Duress of Circumstances: Understand the core elements of this defence, particularly the presence of an imminent threat of death or serious injury.
• Nexus between Threat and Action: Emphasise that the defence requires a direct link between the threat (in this case, the wife's suicidal state) and the commission of the offence (driving whilst disqualified).
• Reasonableness and Proportionality: This is a crucial limitation on the defence. D's actions must be objectively assessed as a reasonable and proportionate response to the perceived threat. Driving to the workplace, in this instance, was deemed a reasonable measure to de-escalate the wife's distress and prevent a potential suicide, thereby avoiding the greater harm.
• Distinction from Duress by Threat: While related, duress of circumstances focuses on external pressures or situations, rather than a direct threat from another person.

​KembaraXtra-Case Law- Conway (1988) CA
​I. Case Overview

• Parties:
  • D: Defendant (driver of the car)
  • T: Passenger wanted by police
  • Police Officers: Two approaching the car
• Facts:
  • D was parked with two passengers.
  • One passenger, T, was wanted by the police.
  • Two police officers approached the car to speak to T.
  • T instructed D to drive away.
  • D drove away at great speed and in a reckless manner.
  • D was charged with reckless driving.

II. Defence Raised

• Defence: Duress of Circumstances
• Basis of Defence:
  • D claimed T had narrowly avoided being shot by two men a few weeks prior.
  • When plain-clothed officers approached the car, D thought they were going to shoot T.
  • D stated he only realized they were police officers after dropping T off at a safe location.

III. Court's Holding (Legal Principle)

• Held: Necessity will only be a defence to the charge of reckless driving where D was under duress of circumstances.
• Definition of Duress of Circumstances:
  • D was constrained by circumstances.
  • The constraint was to avoid death or serious injury.
  • The threat of death or serious injury was to himself or another person.

Key Takeaway: The defense of duress of circumstances requires a direct and immediate threat of death or serious injury that compels the defendant's actions. The belief that such a threat exists, even if mistaken, may be relevant, but the circumstances themselves must necessitate the unlawful act.

​KembaraXtra-Case Law-Bowen (1996) CA - Study Notes
​I. Case Summary

• Defendant (D): Charged with obtaining services by deception.
• Defense: Duress, claiming two men threatened his family.
• Key Argument for Duress:
  • D was abnormally suggestible.
  • Psychiatrist testified D's IQ was only 68.
• Outcome at Trial: Convicted.
• Appeal Ground: Judge failed to direct the jury to consider D's characteristics in applying the objective test for duress.

II. Held (Per Stuart-Smith LJ)A. Characteristics Not Legitimate for the "Reasonable Person" Test

• (1) "Mere fact" characteristics:
  • More pliable
  • Vulnerable
  • Timid
  • Susceptible to threats
  • These cannot be attributed to the reasonable/ordinary person for the objective test.

B. Categories of Persons Where Pressure Resistance May Differ

• (2) Recognized categories for jury consideration:
  • Age: Obvious example.
  • Sex: Possibly.
  • Pregnancy: Where there is added fear for the unborn child.
  • Recognized mental illness or psychiatric condition: E.g., Post-traumatic stress disorder (PTSD) leading to learned helplessness.

C. Admissibility of Psychiatric/Medical Evidence

• Purpose of evidence: To show D suffered from a mental illness, mental impairment, or other recognized psychiatric condition making them more susceptible to threats.
• Procedure: If D wishes to submit a characteristic listed in (2), they must make it clear to the judge, who will then rule on the admissibility of medical evidence.

D. Application to This Case

• D's abnormal suggestibility was irrelevant.
• D's low IQ (68):
  • Fell short of mental impairment or defectiveness.
  • Not a characteristic that makes people less courageous or able to withstand threats/pressure.
• Conclusion on Jury Direction: The judge had directed the jury sufficiently, allowing them to only consider D's age and sex.

​KembaraXtra-Case Law- Hegarty (1994) CA - Duress and Defendant Characteristics
Case Summary
​Defendant (D): Charged with robbery.
Defence: Duress.
D's Claim: Attacked by men who threatened violence against his family if he did not commit the robberies.
Key Issue at Trial: D sought to introduce evidence of his mental instability.
D's Background: History of mental illness, described as 'emotionally unstable' and in a 'grossly elevated neurotic state'.
Court of Appeal (CA) RulingKey Holding: D's emotionally unstable or grossly elevated neurotic state was not a relevant characteristic to consider in the test for duress.
Rationale:

1. Test for Duress: The test of whether D's will was overborne is not purely subjective.
2. Objective Element: The jury must also consider the response of a "sober person of reasonable firmness 'sharing the characteristics of the defendant'."
3. Relevant Characteristics: The court can take into account:
   • Age
   • Sex
   • Physical health
4. Irrelevant Characteristics: The court cannot take into account a personality disorder or mental instability such as that experienced by D in this case.

Implications for Duress Defence

• Mixed Subjective/Objective Test: The defence of duress involves both a subjective element (was D's will overborne?) and an objective element (would a reasonable person, sharing some of D's characteristics, have succumbed?).
• Limited Scope of "Characteristics": While some personal characteristics are relevant, mental instability or personality disorders are generally excluded when assessing the objective standard of reasonable firmness. This prevents the bar for duress from being lowered for individuals with certain psychological vulnerabilities.
• Focus on Reasonableness: The law seeks to balance the understanding of the defendant's immediate fear with the need to maintain a standard of reasonable fortitude in the face of threats.

​KembaraXtra-Case Law-Flatt (1996) CA - Duress and Drug Addiction
​I. Case Information

• Case Name: Flatt (1996) CA
• Court: Court of Appeal (CA)
• Key Area of Law: Duress Defence

II. Case Summary

• Defendant (D) Charged with: Possession of drugs with intent.
• D's Defence: Duress.
• Basis of Duress Claim:
  • Addicted to crack cocaine.
  • Owed dealer £1,500.
  • Dealer threatened to shoot D's grandmother and girlfriend if D didn't look after drugs.
• Initial Outcome: D convicted.
• Grounds for Appeal: Judge should have directed the jury to consider D's drug addiction in applying the objective test for duress.

III. Court's Decision and Reasoning

• Appeal Outcome: Dismissed.
• Key Holdings:
  1. Drug addiction is a self-induced condition.
  2. Drug addiction is NOT a characteristic to be considered in the objective test for duress.
  3. Lack of Evidence: No evidence that drug addiction made D less able to withstand threats or pressure.

IV. Legal Principles & Implications

• Objective Test for Duress: The court reaffirms that the test for duress involves an objective element (whether a reasonable person of the defendant's sex and age, and with any relevant characteristics, would have acted as the defendant did).
• Self-Induced Conditions: The ruling highlights that self-induced conditions generally do not qualify as "characteristics" for the purpose of the objective test in duress.
• Burden of Proof: Implicitly, the defendant bears the burden of demonstrating how a characteristic (if accepted) would have affected their ability to resist threats.
• Limitation on Duress Defence: This case limits the scope of the duress defence, particularly when self-induced conditions are cited as a mitigating factor.