Taxi Driver Online

Here is an extract taken from the police Journal of September 2002 written by Rob Jerrard, legal correspondent and Independent Consultant on police, criminal law, and road traffic.

We've probably all been subject to Duress at one time or another from undesirable passengers and even though we on TDO have touched on this subject many times in the past it is worth reminding everyone that duress can be a mitigating factor in any event where you might be forced against your wishes, to break the law? Such was the case when a Taxi Driver successfully mitigated that duress was the only reason he allowed six Gypsy passengers to be conveyed in his vehicle.
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Police Journal
1 September 2002
Recent Judicial Decisions
Rob R. Jerrerd
Retired City of London Police

Legal Correspondent

Independent Consultant on police; criminal law; and road traffic

Necessity

For some time it has been unclear whether a general defence of necessity existed in English law. Recently courts have started to recognise a defence of duress of circumstances that would achieve many of the same results.

Necessity differs from duress in that it is generally conceived of not as a concession to human frailty, i.e. as an excuse, but rather as a justified choice between two evils: the evil represented by committing the offence is outweighed by the greater evil that would ensue if the offence were not to be committed.

They ate the cabin boy

The leading case of Dudley (1884) 14 QBD 273, [1881–5] All ER Rep 61 is a good example. The two accused were adrift in a small boat on the high seas with another man and the young cabin boy. They had had virtually no food or water for 20 days and had been reduced to drinking their own urine. Finally they killed and ate the cabin boy, who was likely anyway to have been the first to die. probably they themselves would not have survived the further four days that elapsed before they were rescued. In rejecting any defence of necessity the jury had found that there was no greater necessity for killing the boy than any of the others.

Thereafter, English courts have generally rejected a defence of necessity even where the balance of evils points much more clearly in favour of committing the offence.

Fire appliances and red lights

Buckoke and others v Greater London Council [1971] 2 All ER 254

By statute, failure to obey traffic lights was an absolute offence and drivers of fire engines were under the same obligation at law as the drivers of other vehicles to obey the traffic lights. In practice the police did not prosecute fire-engine drivers for crossing against the red lights except where there had been an accident involving carelessness.

The chief officer of the London Fire Brigade with the support of the defendants, the Greater London Council, issued brigade order 144/8 which pointed out that brigade drivers were obliged at law to obey traffic lights but stated, in effect, that a brigade driver responding to an emergency call could proceed against the red light provided he took certain specified precautions. The order stated that the onus of avoiding an accident was on the driver. Drivers who passed a red traffic light without taking the precautions laid down in the order were disciplined. Conformity with the order reduced the risk of drivers' committing traffic offences.

The Fire Brigades Union, which objected to the order on the ground that it encouraged drivers to break the law, told some 20 firemen (the plaintiffs) in the London Fire Brigade to refuse to travel as crewmen with brigade drivers unless the drivers gave an assurance that they would never cross the red lights. The drivers refused to give that assurance, and the plaintiffs refused to obey orders to travel with the drivers. Disciplinary proceedings were taken against the plaintiffs under the Fire Services (Discipline) Regulations 1948 for disobeying, or without sufficient cause failing to carry out, a lawful order. The plaintiffs brought an action against the defendants claiming both a declaration that order 144/8 was unlawful and injunctions requiring the defendants to countermand the order and restraining them from continuing with the disciplinary proceedings.

Held –

(i) The plaintiffs were not entitled to the declaration or to an injunction countermanding order 144/8 because—

(a) order 144/8 was a lawful order: it was a justifiable administrative step taken in the public interest for the chief officer to instruct his men that no disciplinary action would be taken against them for crossing the red lights on an emergency call so long as they took the necessary precautions, and the court should back it by judicial decision; the order did not confer on drivers a discretion to break the law but limited that discretion which they individually exercised, and if the order were withdrawn, the likelihood of drivers disregarding traffic signals in circumstances involving risk of accident would increase.

(b) (per Sachs LJ) the plaintiffs had no material interest in the legality of order 144/8 such as would entitle them to claim the declaration they sought.

(ii) An injunction restraining the disciplinary proceedings would not be granted because—

(a) as order 144/8 was lawful, the orders given to the plaintiffs to travel with drivers observing order 144/8 were lawful orders and the plaintiffs had no sufficient cause for failing to carry them out for they would not be submitting to danger by travelling with a driver who observed order 144/8.

(b) although the courts had power to interfere if a disciplinary tribunal did not act fairly, there was no reason to suppose that the firemen's disciplinary tribunal would not do what was just and, normally, the courts would not intervene before service disciplinary proceedings were heard and where there existed, as under the 1948 regulations, a code of procedure providing for a carefully regulated hearing;

(c) (per Sachs LJ) as the plaintiffs had no material interest in order 144/8, they could not make its existence a ground for claiming an injunction to restrain the disciplinary proceedings.
(Decision of Plowman J [1970] 2 All ER 193 affirmed.)

Lord Denning accepted as correct the proposition that a driver would have no defence if he proceeded through a red light to save a man in imminent peril in a blaze 200 yards away (regulations passed since would now permit this). He said, 'nevertheless such a man should not be prosecuted, he should be congratulated'.

Duress of circumstances: road traffic cases

The early authorities on the defence of duress of circumstances were a series of cases dealing with road traffic offences, but in Pommell [1995] 2 Cr App R 607, CA; (1995) The Times, 22 May the Court of Appeal confirmed that the defence applies to all crimes except murder, attempted murder and some forms of treason. Pommell was found lying in bed with a loaded gun in his right hand.

The first case was Willer (1986) 83 Cr App R 225, CA; (1986) The Times, 10 March (reckless driving), where the accused drove his car on to the pavement and into (and back out of) a shopping precinct to escape from a gang of youths bent on attacking himself and his passengers. They were shouting, 'I'll kill you.' The trial Judge ruled that no defence of necessity was available. The Court of Appeal thought that 'a very different defence', that of duress, should have been available. According to Watkins LJ the question then would be:

whether or not upon the outward or the return journey, or both, the appellant was wholly driven by force of circumstance into doing what he did and did not drive the car otherwise than under that form of compulsion.

Willer was followed and applied in Conway [1989] QB 290, another reckless driving case, in which the Court of Appeal quashed the conviction, saying 'it is still not clear whether there is a general defence of necessity' and 'necessity can only be a defence to a charge of reckless driving where the facts establish “duress of circumstances”'.

Unmarked police car driver going through a red light. See Director of Public Prosecutions v Harris 158 JPN 896; (1994) The Times, 16 March for discussion of whether 'necessity of circumstances' can be a defence to a charge of driving without due care and attention for a police driver going through a red light. He was on a covert operation following armed robbers. It was held that there was no scope for the doctrine of the defence of necessity of circumstances in the situation as here. Such defence as necessity as existed was set out in regulation 33 of the Traffic Signs Regulations and General Directions 1994.

Driving while disqualified

In Martin (1989) 88 Cr App R 343, duress of circumstances was recognised as a potential defence to driving while disqualified. 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.

[F]irst, 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?

The crucial question is not so much whether the accused was justified as whether he can be excused on the grounds that a reasonable person would have felt impelled to act in the same way.

Driving with excess alcohol

Duress of circumstances has also been allowed by the Divisional Court on a charge of driving with excess alcohol in DPP v Bell [1992] RTR 335, where the accused, because of his terror of his pursuers, ran back to his car and drove off some distance down the road. The fact he did not continue to drive all the way home supported the finding that he was driving because of his fear and not because of any prior intention to use his car to get home even if intoxicated.

This contrasted with the earlier case of DPP v Jones [1990] RTR 33 where a similar defence failed because the accused drove the two miles home without even bothering to check whether he was still being pursued. DPP v Davis DPP v Pittaway [1994] Crim LR 600 is to similar effect. Now driving without due care and attention can be added to the list of offences for which this defence is available.
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