Crown Prosecution Service v Brown [2007] EWHC 3274 (Admin)

Case No CO/5199/2007[2007] EWHC 3274 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 20 December 2007
Strand
London WC2
B E F O R E:
LORD JUSTICE DYSON
MR JUSTICE JACK
CROWN PROSECUTION SERVICE
(CLAIMANT)
-v-
BROWN
(DEFENDANT)
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Mr H Hadfield (instructed by Crown Prosecution Service ) appeared on behalf of the Claimant
Mr J Kemp (instructed by Leigh Turton Dixon of Stockton on Tees) appeared on behalf of the Defendant
J U D G M E N T
Between
Crown Prosecution ServiceClaimantBrownDefendant
[1]MR JUSTICE JACK: This is an appeal by the Crown Prosecution Service by way of case stated from the decision of magistrates, sitting at Langbaurgh East, on 29 January 2007 when they acquitted the respondent Christopher Brown of driving with excessive alcohol contrary to Section 5 (1) (a) of the Road Traffic Act 1988.[2]The defence run by the respondent was duress. Subject to that, he admitted the offence.[3]The facts found by the magistrates can be summarised as follows. On 5 November 2006 the respondent invited three men whom he had not previously met to attend a bonfire and fireworks party at his parents' home in Cleveland Close, Ormesby, Middlesbrough where he lived. His parents were away. All went well until one of the three began to flirt with the respondent's girlfriend. The respondent then asked them to leave. After an interval they did. Later, at about 1.30 to 2 o'clock in the morning, the respondent received a telephone call saying that three lads were on their way to the house and were "going to get you, Brownie."[4]The magistrates accepted that the respondent was terrified and believed that he was going to be beaten up. They accepted that he decided to drive to his grandmother's home in Redcar about 7 miles away. As he left in his silver Vauxhall Corsa, he saw the three men up the road. He did not think that they had seen him and they did not chase him.[5]The magistrates also heard evidence from Gordon Lofts who was visiting a friend in Cleveland Close and was standing outside smoking a cigar between about 1 and 2 am. He saw a gang of about six youths. He heard a male voice shout, "I'm going to kill him." Somebody shouted, "Brownie." A little later he saw a light coloured hatchback. Five minutes after that - I emphasise the interval - a dark coloured hatchback came into Cleveland Close; four or five youths got in. It did a three-point turn and left. Mr Lofts knew the respondent but he did not observe him that night.[6]The respondent was stopped by a police officer by reason of his speed after he had driven for between five and ten minutes and had covered about three miles. He was taken to the police station where he was found to have 89 micrograms of alcohol per 100 millilitres of breath, the limit being 35 micrograms. He never told the police that he had been threatened. He was apologetic, calm and relaxed. He said he was going to Redcar to see a friend. In his evidence the respondent said that he had considered telephoning the police but had not thought they would arrive in time to save him from being beaten up. He agreed that he was not under threat when he was stopped.[7]The magistrates accepted that the respondent had not told the police of the threat because he did not want his father to know that he had admitted people to the house. They found that the respondent was in fear of serious injury from the three men following the telephone call. The case states:
"We believe that a sober person of reasonable firmness, sharing the same characteristics of the accused, would have responded to the situation by acting in the same way as the respondent. We found that the respondent acted in 'duress of circumstances'. We therefore dismissed the information."
[8]The question posed by the case is whether in the light of the findings of fact the magistrates were right to acquit the respondent on the basis of the defence of duress.[9]The ambit of duress was reviewed by Lord Bingham in R v Z and R v Hasan [2005] UKHL 22, [2005] 2 AC 467 at paragraph 21 of his opinion. He began by referring to the fact that unsurprisingly the law had developed to confine the defence of duress to narrow limits. He listed the limitations. I refer in particular to numbers (5) and (6):
"(5) The defence of duress is available only where the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied upon. (6) The defendant may excuse his criminal conduct on the grounds of duress only if, placed as he was, there was no evasive action he could reasonably have been expected to take. It is important to return to this aspect also. This is an important limitation of the duress defence, and in recent years it has, as I shall suggest, been unduly weakened."
[10]The law of duress has been applied to a number of situations involving alcohol and driving in decisions of this court. The first in time to which I wish to refer is Director of Public Prosecutions v Jones [1990] RTR 33. This makes the point which I consider is essential to the determination of the present appeal. The defendant in that case had been subjected to an attack in the car park of a public house. He got into his car which was then hit and kicked. He decided his only means of escape was to drive away which he did. He continued to his home, a distance of one-and-a-half to two miles. In the course of his judgment, Mr

Justice Tudor Evans stated:

"Speaking for myself, I can quite follow how the defence of necessity was available for the defendant for a part of the journey to his house. Before the justices it was submitted on behalf of the prosecutor that there was no necessity for him to drive all the way home. The justices found as a fact that the defendant did not even bother to check whether he was being pursued, whether on foot, or in a vehicle or in any other way. In these circumstances, it seems to me that the defence of necessity did not avail the defendant other than for the initial part of the journey. It was unnecessary for him to have continued all the way home in his car. He could easily - especially as it appears that he was not being pursued - have pulled into a side road or into some other convenient place and proceeded for the rest of his journey home on foot. It follows for those reasons that my answer to the two questions put for the opinion of the court is, as to the first, that the justices were not correct in law to find that the defence of duress/necessity was available to the defendant. The answer to the question is that it was not available to the defendant because he drove for a longer period than was necessary."
[11]In contrast with that case is Director of Public Prosecutions v Bell [1992] RTR 335. There, the defendant had driven a short distance down the road to get away from an attack. He was acquitted. An appeal by the prosecutor was dismissed. Director of Public Prosecutions v Tomkinson [2001] RTR 38, [2001] EWHC Admin 182, is another example of the same sort of case.[12]Here, it could plainly be argued either way whether the respondent had any alternative to driving to get away from the threat that he faced in Cleveland Close. The only alternative advanced to the magistrates was the calling of the police. Although there is no express finding, they appear to have accepted that the respondent's reason for not taking that course was a reasonable one. Nonetheless other alternative courses of action come to mind.[13]I do not think that we need to consider whether the magistrates were right to conclude on the facts they found that the defence of duress was available in respect of the situation when the respondent first got into his car and drove out of Cleveland Close. That is because it is quite plain that the defence ceased to be available to him long before he was stopped by the police. He was not being pursued and he had no grounds to think that he was being pursued, nor did he think that. When he drove away he saw the three men talking and they did not see him. Despite the efforts of Mr James Kemp to persuade us that the magistrates were justified in finding that the respondent was still acting under duress with regards his driving when he was stopped, it is plain that that was not the case.[14]I would remit this case to the magistrates with a declaration that the respondent should be convicted.

LORD JUSTICE DYSON: I agree.

[16]MR HADFIELD: I do not think that the question of costs arises.[17]MR KEMP: I appear under a representation that was granted by a member of this court. It would only be transferring government money from one department to another.

LORD JUSTICE DYSON: Thank you.