Director of Public Prosecutions v Mullally [2006] EWHC 3448 (Admin)

Case No CO/4928/2006[2006] EWHC 3448 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 9 November 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE FULFORD
DIRECTOR OF PUBLIC PROSECUTIONS
(APPELLANT)
-v-
ANNE MULLALLY
(RESPONDENT)
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MR W REDGRAVE (instructed by the Crown Prosecution Service) appeared on behalf of the APPELLANT
MR J HOUSE (instructed by Cartwright King) appeared on behalf of the RESPONDENT
J U D G M E N T
Between
Director of Public ProsecutionsClaimantMullallyDefendant

Background

[1]In this appeal, brought by the prosecution by way of Case Stated, the issue for the court is whether the justices were entitled to conclude that the defendant (the respondent) may have been acting under duress when she drove a motor vehicle having consumed excess alcohol. Putting that question in the way in which it is described by the justices:
"Were the justices entitled to conclude that the prosecution had failed to establish the respondent had not been acting under duress?"
[2]The facts can be shortly set out, as rehearsed in the Case Stated and the agreed parts of counsels’ written submissions. The respondent (Anne Mullally) was charged with having driven a motor vehicle (a Rover Metro) on 19 June 2005 on a road (Gilmorton Avenue, Leicester) after consuming so much alcohol that the proportion of it in her breath, namely 77 micrograms of alcohol in 100 millilitres of breath, exceeded the prescribed limit (contrary to section 5(1)(a) of the Road Traffic Act 1988).[3]The justices found that the respondent had been subjected in the past to serious violence by three of her four husbands. On 19 June 2005, she had reason to fear for her sister's ("S") safety at the hands of the latter's partner ("P"), and as a result she drove in the Rover Metro to their address. Once there, the respondent was assaulted by P, who additionally threatened to throw her down an external iron stairway; thereafter, she called the police for assistance at about 2.55am. However, the respondent, with her own daughter -- both dressed in nightwear -- then left S's address before the police arrived. P followed them into the street, where he stopped. The respondent and her daughter carried on for about 100 yards until they reached the Rover. They got in and drove back towards S's address, and as a result the respondent's daughter was able to tell her that the police had arrived as they drove past that address.[4]Notwithstanding the presence of the police, the respondent continued to drive towards her home, which was over half a mile away. She was followed by officers, and at one point whilst they were directly behind her, she stopped for about ten seconds at traffic lights that were showing a green light. After she had driven in all for about half a mile, the respondent was intercepted by the police and she was asked to take a breath test, which produced a positive result. She was arrested and was taken to Euston Street Police Station. There she provided further specimens for analysis, resulting in the findings set out above as regards the amount of alcohol in her blood.[5]Set against those findings of fact, the justices addressed the following two questions:
"(i) Whether the respondent was impelled to act as she did as a result of holding a reasonable belief of an imminent threat of serious physical harm? (ii) Whether from an objective viewpoint, the threat ceased to exist prior to the respondent being required to stop by the police?"
[6]The justices' conclusions were set out in their Decision:
"We were satisfied that: (i) the respondent genuinely feared imminent serious violence and that she formed the view that driving was necessary to escape that threat; (ii) that fear remained with her throughout the journey. (iii) that it would not be reasonable to expect a woman and her daughter in pyjamas and dressing gowns to seek refuge at 3am from a stranger, albeit a police officer. We found that the prosecution failed to prove that the respondent was not acting under duress. We acquitted the respondent of driving a vehicle having consumed alcohol in excess of the prescribed limit."
The arguments[7]The relevant legal principles can be shortly described. There is no doubt that duress/necessity is available as a defence to a driving charge (see, for example, DPP v Bell [1992] RTR 335). The defence, once raised, involves the court determining two questions (the burden, in those circumstances, resting on the Crown): first, was the accused, or may he or she have been, driven to act as they did because they genuinely (even if mistakenly) believed that if they did not do so death or serious injury would result to themselves or someone whose safety they would reasonably regard themselves as responsible? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have been driven in that situation into acting as he or she acted? If the answer to both those questions is yes, then the court must acquit and the defence would have been established (see R v Saji Ali Ahmed [2004] 1 Crim App R 14) so long as the threat was effective at the time when the crime was committed and there was no available escape route or other means of dealing with the situation that a reasonable person in the defendant's situation would have taken but which the accused did not take.[8]One example of evasive action that is referred to in the authorities which it is expected should be taken in these circumstances, is to seek out, and to rely on, the protection of police, if that option is realistically available (see R v Z [2005] 2 WLR 709 HL at para 28; [2005] UKHL 22). Lord Bingham in R v Z stressed that in recent years there had been an unjustified weakening of the requirement that the accused needs to have taken all reasonable evasive action (see paragraph 21(6)).[9]The appellant argues that the justices failed properly to address the issue of whether it was necessary (viewed from the standpoint of a sober and reasonable person), first, for the respondent to drive away from the scene once the police had arrived, and second, for her to continue driving once she was aware that she was being followed by the police (I note, however, there is an issue which we cannot satisfactorily resolve as to whether or when she knew she was being followed). The appellant’s core argument is that once the police had arrived, it was no longer necessary or reasonable for the respondent to continue to commit what was (in the absence of a viable duress defence) a potentially dangerous criminal offence.[10]For the respondent, Mr House submitted, in essence, that there is no basis for suggesting the justices approached this case in an impermissible or wrong way, and that they, as the fact-finding tribunal, were entitled to come to the conclusions set out above. He argues that an important conclusion by the court below was that "the fear" remained with the respondent throughout the journey.[11]Furthermore, Mr House, in his able and short submissions, reminds us that the justices were reminded during the course of argument of the correct test that they must apply in both its subjective and objective elements. Analysis and Conclusions[12]The justices found that the respondent's fear was genuine and at an appropriately high level, namely she feared imminent serious violence. Accordingly, the justices concluded appropriately that first (subjective) part of the ingredients of duress/necessity was not disproved by the prosecution. However, in my view, the court below fell into error as regards the second question, namely whether, from an objective standpoint, the respondent's response to the threat was reasonable. Whilst I do not criticise the justices' conclusions as regards the defendant's actions in leaving S's home and getting into her car, and (on these particular facts) initially driving away, objectively viewed from the moment she was aware that the police had attended at the premises, it ceased being necessary for her to continue to drive whilst over the limit in order to avoid a serious assault. Once a reasonable person knew that the police were at S's home, whether or not they were in their nightclothes and whether or not they knew any of the individual officers, the only sustainable and reasonable reaction was to conclude that they would be given appropriate protection by the police. As Lord Bingham observed in R v Z, this defence needs to be tightly circumscribed, and his Lordship approved the approach of Dickson J in Perka v The Queen [1984] 2 SCR 232 at 250:
"If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale."
[13]It is important to observe there was no suggestion that P was armed or that police officers would not be able to handle the situation. Accordingly, in my judgment, the only proper conclusion was that the threat of immediate and serious violence had been removed. Therefore, the half mile or so drive to the respondent's home fell demonstrably outside the response of a reasonable person. The only sustainable finding, in my view, was that the prosecution had disproved this (objective) element of the defence. I would answer the question posed by the justices “no”, and remit this case to them with a direction to convict.[14]The matters the justices relied on in their reasons will no doubt be considered carefully by the court in mitigation of any sentence that is imposed in due course.

LORD JUSTICE LATHAM: I agree.

Cited in 1 later judgment