Driving withour due care & attention: Necessity defence for driver.
Regina v Backshall
(1998) The Times, April 10 1998 Court of Appeal.
The Facts
Backshall had been driving his car (Mondeo) when his co-accused, Howell, attempted to overtake. It was alleged that Backshall drove his vehicle from side to side and applied his brakes several times before Howell overtook him. That was the first driving incident.
Both vehicles stopped and a fight ensued during which it seemed Howell was the aggressor. Howell went to his car and returned with a hammer. He smashed the Mondeo's windscreen and front side windows while Backshall sat in the driver's seat.
Backshall drove away at speed pursued by Howell. Backshall reversed from a side street into a major road and stopped, facing the wrong direction in traffic. That was the second incident.
Backshall was charged with dangerous driving. The recorder left the alternative verdict of careless driving to the jury, leaving the defence of necessity to the jury in relation to the dangerous driving alone and only in relation to the second incident.
Backshall was convicted of driving without due care and attention and appealed on the ground that the recorder had failed to direct the jury that necessity or duress of circumstances was a possible defence to careless driving.
The Law
The Court of Appeal said that there was some uncertainty as to whether as a matter of law a defendant could rely on what was called "necessity" as a defence to an offence of driving without due care and attention.
According to Archbold, Criminal Pleading, Evidence and Practice (1998) paragraph 17-131) the question had not finally been settled.
In Director of Public Prosecutions v Harris [1995] 1 Cr. App. R 170, that court inclined to the view that necessity would never be available as a defence to a charge of driving without due care and attention because the court would be entitled to take account of all the circumstances in deciding what was "due", but Mr Justice Curtis thought it would be anomalous for the defence to be available on a charge of the more serious offence, but not on the lesser alternative offence.
The Court of Appeal would be prepared to hold that the view expressed by Mr Justice Curtis in Harris was in fact correct. The contrary view expressed by Lord Justice McCowan was to the effect that because the charge was one of driving without due care and attention then necessarily the court was required to take account of all the surrounding circumstances to the offence. In other words, a separate defence of necessity was unnecessary.
Even on that view, it would be necessary in summing up to include an explanation of the fact that the jury was entitled to take account of the circumstances in deciding whether the driving was careless or not. Without such a direction the jury might think it sufficient to take an objective view of the driving itself without taking account of the reasons for it.
The Court of Appeal held that it was better to take the view that necessity was available as a defence so that the position would be plain to the jury or Magistrates.
The Decision
In an appropriate case, the defence of "necessity" or "duress of circumstance" was available as a defence to a charge of driving without due care and attention.
The Court of Appeal, so held in allowing an appeal by Backshall against his conviction at Crown Court of driving without due care and attention, having been acquitted of dangerous driving.
Comment
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 which would ensue if the offence were not to be committed.
They ate the cabin-boy
The leading case of Dudley (1884) 14 QBD 273 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. They would probably themselves not have survived the further four days which 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.
In Buckoke v Greater London Council (1971) RTR 131 (instructions issued to drivers of fire-engines), 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) The Times, May 22 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) The Times, March 10 (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, March 16 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] (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.
". . . first, 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 & attention can be added to the list of offences for which this defence is available.
Rob Jerrard