Editorial Committee of the Cambridge Law Journal

Mondeo Man, Road Rage and the Defence of NecessityAuthor(s): Jonathan HerringSource: The Cambridge Law Journal, Vol. 58, No. 2 (Jul., 1999), pp. 268-270Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508559 .

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268 The Cambridge Law Journal [1999]

recently held that police officers exercising powers of arrest for a breach

of the peace must take account of the eflfect of their actions on the

protected rights to freedom of speech and assembly (Steele v. United

Kingdom [1998] Crim. L.R. 893). D.PP v. Jones is in keeping with this

approach: its immediate effect has been the decision of the Chief

Constable of Wiltshire not to seek a section 14A order in relation to

this year's gathering at Stonehenge; its longer term influence will be on

all those, whether the police, local authorities, the Home Secretary or

magistrates, who have cause to apply these provisions in future.

Ivan Hare

268 The Cambridge Law Journal [1999]

recently held that police officers exercising powers of arrest for a breach

of the peace must take account of the eflfect of their actions on the

protected rights to freedom of speech and assembly (Steele v. United

Kingdom [1998] Crim. L.R. 893). D.PP v. Jones is in keeping with this

approach: its immediate effect has been the decision of the Chief

Constable of Wiltshire not to seek a section 14A order in relation to

this year's gathering at Stonehenge; its longer term influence will be on

all those, whether the police, local authorities, the Home Secretary or

magistrates, who have cause to apply these provisions in future.

Ivan Hare

MONDEO MAN, ROAD RAGE AND THE DEFENCE OF NECESSITY

Ian Howell, driving, a Mazda, attempted to overtake David Backshall

who was driving a Ford Mondeo. This led to an "appalling example of road rage" involving a fight between the two drivers and the

smashing by Howell of the Mondeo's windscreen. Backshall drove

away and in his attempt to escape engaged in some unorthodox

driving manoeuvres. The two men were charged with affray and two

counts of dangerous driving. Backshall was convicted of driving without due care and attention contrary to Road Traffic Act 1988, s. 3, and appealed to the Court of Appeal: R v. Backshall [1999] 1 Cr. App. R. 35.

The central question for the court was clear: was necessity

(otherwise known as duress of circumstances) a defence to a charge of careless driving? The defence of necessity or duress of circumstances

is available when "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" (R. v. Martin (1989) 88 Cr. App. R.

343, 346, per Simon Brown I). The defence is also available where

the defendant reasonably believes there to be a threat of death or

serious injury even if there is in fact no such threat (R v. Cairns,

(Court of Appeal, 22 February 1999, unreported)). The argument that the defence is available to careless driving was

straightforward. It had been stated by the Court of Appeal in R. v.

Pommell [1995] 2 Cr. App. R. 607 that duress of circumstances was

available to all crimes except murder, attempted murder and treason,

by analogy with duress of threats. The defence had been said, obiter, to be available to careless driving in R. v. Symonds [1998] Crim. L.R.

280 and D.PP v. Harris [1995] Cr. Ap. R. 170, per Curtis J. It would

indeed seem odd if necessity was a defence to dangerous driving but

not to the lesser and alternative charge of careless driving.

MONDEO MAN, ROAD RAGE AND THE DEFENCE OF NECESSITY

Ian Howell, driving, a Mazda, attempted to overtake David Backshall

who was driving a Ford Mondeo. This led to an "appalling example of road rage" involving a fight between the two drivers and the

smashing by Howell of the Mondeo's windscreen. Backshall drove

away and in his attempt to escape engaged in some unorthodox

driving manoeuvres. The two men were charged with affray and two

counts of dangerous driving. Backshall was convicted of driving without due care and attention contrary to Road Traffic Act 1988, s. 3, and appealed to the Court of Appeal: R v. Backshall [1999] 1 Cr. App. R. 35.

The central question for the court was clear: was necessity

(otherwise known as duress of circumstances) a defence to a charge of careless driving? The defence of necessity or duress of circumstances

is available when "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" (R. v. Martin (1989) 88 Cr. App. R.

343, 346, per Simon Brown I). The defence is also available where

the defendant reasonably believes there to be a threat of death or

serious injury even if there is in fact no such threat (R v. Cairns,

(Court of Appeal, 22 February 1999, unreported)). The argument that the defence is available to careless driving was

straightforward. It had been stated by the Court of Appeal in R. v.

Pommell [1995] 2 Cr. App. R. 607 that duress of circumstances was

available to all crimes except murder, attempted murder and treason,

by analogy with duress of threats. The defence had been said, obiter, to be available to careless driving in R. v. Symonds [1998] Crim. L.R.

280 and D.PP v. Harris [1995] Cr. Ap. R. 170, per Curtis J. It would

indeed seem odd if necessity was a defence to dangerous driving but

not to the lesser and alternative charge of careless driving.

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C.L.J. Case and Comment 269

The argument that the defence is not available to careless driving is that a defendant is guilty of the offence only if he or she is driving without due care and attention. If a defendant is escaping a threat of

death or serious injury and driving reasonably then the driver would

not be driving without due care. In other words, whenever the defence

of necessity would be available the actus reus of the offence would

not be made out and so there is no need for the defence.

The Court of Appeal allowed the appeal, holding that necessity should have been left to the jury as a defence to careless driving. It

was accepted that when the defence of duress of circumstances arose, the driving might well be said not to be without due care. But what

really matters, Evans L.J. thought, was "that the jury or the fact

finding tribunal should be clear that it is possible in an appropriate case to take account of the reasons for the driving, when those

reasons do or may amount to grounds which give rise to the defence

of necessity or duress of circumstances" (at p. 42). The easiest way of doing this would be to refer explicitly to the defence. So even if as

a matter of logic the defence was not necessary, it should be referred

to so that the issue was made clear to the jury. The case provides some assistance in defining "due care" for the

purposes of section 3. It suggests that "due care" is to be judged

objectively, but based on the facts as the defendant reasonably believed them to be. So the test seems to be whether the defendant, on the basis of the facts as he or she reasonably believed them to be, drove with a reasonable level of care and attention.

The case also confirms the increasing acceptance of the defence

of duress of circumstances or necessity. However, there are difficulties

with the terminology used. The Court of Appeal in Backshall used

the terms "necessity" and "duress of circumstances" interchangeably, but they have been regarded as representing two distinct concepts by some commentators and in other cases (e.g, Cichon v. D.P.P. [1994] Crim. L.R. 918; R. v. Pommell [1995] 2 Cr. App. R. 607). Necessity is used to refer to a pure justification (for example a claim that the

defendant chose the lesser of two evils) and is only recognised to a

very limited extent in English law. Duress of circumstances is a form

of duress where the defendant is excused after acting reasonably in

the face of an awful dilemma. There is much to be said for keeping the two terms distinct.

In fact Backshall seems not to be a case of either duress or

necessity but rather a case of self-defence. The defendant was

escaping from an anticipated attack. The reason why self-defence was not referred to is that it appears that self-defence is only available to

crimes where force has been used (Criminal Law Act 1967, s. 3, and

R. v. Renouf[\9&6] 2 All E.R. 447). This is bizarre because the law

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The Cambridge Law Journal The Cambridge Law Journal

should encourage non-violent forms of self-defence. On the facts of Backshall it did not matter whether the defence was classified as duress of circumstances or self-defence. But in cases where the defendant anticipates only a minor injury or is unreasonably mistaken that an attack is about to take place, it is crucial whether the defence is seen as duress or self-defence. This is because duress is not available if the anticipated harm is not serious or if the belief that an attack is about to take place is unreasonable. Does it really make sense that if Backshall, fearing a minor injury, had pushed Howell he would have a defence to a charge of assault, but if he drove away carelessly without causing any harm he would not be able to plead duress or self-defence to a charge of careless driving? The problem is perhaps more a theoretical than a practical one because no doubt he would be found to be driving with due care and attention. However, the law is not intellectually satisfying.

The defence of duress of circumstances at present is papering over the problems with the availability of self-defence and the lack of a general defence of necessity in the justificatory sense. If we are not to have a general defence of necessity, the time has come to acknowledge that there should be a defence of duress when the defendant acts reasonably when faced with a threat of any kind of injury (not just serious injury) and that self-defence can apply to any crime.

JONATHAN HERRING

NEGLIGENCE-VICARIOUS LIABILITY OF HEALTH AUTHORITIES-

DIAGNOSIS OF DYSLEXIA

DYSLEXIA is a specific difficulty in learning how to use written notation, not attributable to generally low intellectual performance, emotional difficulties, or external factors. While its existence as a condition in its own right had been suspected for over a century, it is only much more recently that relatively definite tests for its existence have been developed. Even now, no one test can conclusively show its presence or absence. Local education authorities must provide for the special educational needs of children under their care, though it is settled law that the authorities cannot themselves be sued for breach of those duties (X (Minors) v. Bedfordshire CC. [1995] 2 A.C. 633). However, X contains strong dicta that where the plaintiff can demonstrate negligence by particular members of staff, such as educational psychologists, then those members of staff will be personally liable, and the authority will be vicariously liable. Phelps v. Hillingdon L.B.C. [1999] 1 W.L.R. 500 raises the question whether

should encourage non-violent forms of self-defence. On the facts of Backshall it did not matter whether the defence was classified as duress of circumstances or self-defence. But in cases where the defendant anticipates only a minor injury or is unreasonably mistaken that an attack is about to take place, it is crucial whether the defence is seen as duress or self-defence. This is because duress is not available if the anticipated harm is not serious or if the belief that an attack is about to take place is unreasonable. Does it really make sense that if Backshall, fearing a minor injury, had pushed Howell he would have a defence to a charge of assault, but if he drove away carelessly without causing any harm he would not be able to plead duress or self-defence to a charge of careless driving? The problem is perhaps more a theoretical than a practical one because no doubt he would be found to be driving with due care and attention. However, the law is not intellectually satisfying.

The defence of duress of circumstances at present is papering over the problems with the availability of self-defence and the lack of a general defence of necessity in the justificatory sense. If we are not to have a general defence of necessity, the time has come to acknowledge that there should be a defence of duress when the defendant acts reasonably when faced with a threat of any kind of injury (not just serious injury) and that self-defence can apply to any crime.

JONATHAN HERRING

NEGLIGENCE-VICARIOUS LIABILITY OF HEALTH AUTHORITIES-

DIAGNOSIS OF DYSLEXIA

DYSLEXIA is a specific difficulty in learning how to use written notation, not attributable to generally low intellectual performance, emotional difficulties, or external factors. While its existence as a condition in its own right had been suspected for over a century, it is only much more recently that relatively definite tests for its existence have been developed. Even now, no one test can conclusively show its presence or absence. Local education authorities must provide for the special educational needs of children under their care, though it is settled law that the authorities cannot themselves be sued for breach of those duties (X (Minors) v. Bedfordshire CC. [1995] 2 A.C. 633). However, X contains strong dicta that where the plaintiff can demonstrate negligence by particular members of staff, such as educational psychologists, then those members of staff will be personally liable, and the authority will be vicariously liable. Phelps v. Hillingdon L.B.C. [1999] 1 W.L.R. 500 raises the question whether

270 270 [1999] [1999]

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