Duress is an absolute defence to a number of criminal charges, including drink and drug driving. The threshold to achieve an acquittal is high. This particular defence is somewhat of a rarity in motoring cases. However, we have successfully presented a number of duress defences some basic details of which we have included in this blog.
The duress defence in the context of a drink or drug driving case focuses entirely on why the defendant drove under the influence. For the court to accept the defence, the reason for driving has to be so exceptional that, had they not acted unlawfully, they believed they were at risk of serious harm or even death to themselves or another.
What is the Law on Duress of Circumstance?
The defence of duress consists of two elements: subjective and objective.
SUBJECTIVE
The subjective element requires the court to determine whether the defendant feared death or serious injury would occur unless they had acted in the manner they did, such as driving under the influence.
OBJECTIVE
The objective element requires the court to assess whether there was good cause to fear death or serious injury, and whether a reasonable and sober person with similar characteristics to the defendant would have responded in the same way.
It is important to note that the defence of duress only applies as long as the threat of immediate and serious violence is present. Once the threat is removed, there can be no further justification for actions taken (e.g., driving under the influence in drink driving cases).
To support the above criteria, the Court of Appeal, in a recent 2019 duress case (R. v Petgrave), approved three questions as a clear and structured approach to the defense of duress. In that case, the defendant was charged with causing serious injury by dangerous driving.
- Was there a threat of death or serious injury to the defendant operational at the time?
- Did the defendant genuinely believe that if they did not act as they did, they would be killed or seriously injured almost immediately?
- Could a sober person of reasonable firmness, sharing the defendant’s characteristics, have responded to the situation by acting as the defendant did
Once a defendant raises a defence of duress, the burden of proof falls to the Crown Prosecution Service to disprove the defence beyond a reasonable doubt. If the Crown fails to do so, the court should acquit the defendant of the charge as they acted under duress.
Our Experience
Although these cases are rare and dependent on the facts of the specific case. We have successfully presented a handful of defences of duress over our 20 plus years of trading as motoring specialists. Although we have a duty of confidentiality to our clients, we have summarised the facts of some cases where duress was successfully argued:
- A case from many moons ago involved a client who was seeking to escape from armed attackers where he was mistaken for a drug dealer by a rival gang. He had already received a significant beating from the gang and drove a short distance purely to get away from further attack.
- Another more recent case involved a client who had an accident at home while consuming alcohol and decided to drive to the hospital. This a drink driving charge. The court found that our client drove under duress of necessity, and accepted the decision to drive was reasonable and proportionate given the urgency of the situation.
- Another case involved a domestic violence situation. Seeking protection from the threat and possible escalation of violence, the defendant sought refuge in her vehicle and drove a short distance to a public place where she waited for a parent to arrive. The police noticed her driving behavior and subsequently arrested her for drink driving. During the trial, the prosecution argued that there was no viable threat of serious injury at the time our client drove. We presented evidence that our client’s case met the three-stage test for duress, and the judge agreed, acknowledging that our client acted out of a genuine belief that her life was in immediate danger, and she drove under duress.
Special Reason of Emergency
If the court does not find the defence of duress has been met, there is a second option available to argue a special reason of emergency. This would not result in acquittal of a drink drive charge but if accepted, the special reason allows the court to impose no penalty or an alternative penalty to the usual mandatory minimum of a 12 month ban for a first time offender or 36 month ban for a repeat offender.
What are special reasons?
A Special Reason is not a mitigating factor and is not to be confused with exceptional hardship. A special reason is a reason that is directly relevant to the act of committing the offence but is not a defence.
Special reasons can be argued either following a decision to plead guilty or after attempting a defence such as duress but being convicted regardless of your defence.
If you have argued duress but failed to convince the court to accept this defence at trial, it is highly likely we would move onto arguing this special reason of emergency.
If a special reason is accepted then the court can impose no penalty or a penalty that is more lenient than the mandatory ban such as penalty points but you would still be convicted of the offence.
The criteria for special reasons explained
The most common special reasons argued in motoring cases are:
- An emergency situation;
- Spiked Drinks / Laced Drinks; and
- Shortness of distance driven.
Again, the court has to follow strict criteria when deciding whether or not to accept a special reason. The reason must be:
- Extenuating by nature (lessen the seriousness of the offence committed);
- Must be directly connected to the offence itself;
- Must not amount to a defence; and
- The matter must be one that the court ought properly to take into consideration when imposing punishment.
The Court would consider other factors when deciding whether to accept your special reason such as:
- The quantity of alcohol/drugs consumed;
- The seriousness of the emergency;
- The reason why you personally had to drive and were unable to get a taxi/someone else to drive;
- What risks you posed to others. Eg. If it was 3pm outside a school then the court may find against you; and
- The distance you drove.
So, if you have a defence of duress, this will be presented as a first step as if this is successful you will avoid a conviction and any penalty being imposed. If this defence is rejected by the court, the special reason of emergency will be a second step as although you will still receive a conviction, you could avoid any penalty being imposed or receive a much lower penalty than the usual mandatory minimum.
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