Is duress a defence to drink driving here?

Know its been tested in the UK, with mixed results, but has the defence of 'having to leave an area to protect one's health', say like fleeing an atatcker, been used in this country?

maidhc

Deleted User wrote: »

Know its been tested in the UK, with mixed results, but has the defence of 'having to leave an area to protect one's health', say like fleeing an atatcker, been used in this country?

No.

I know necessity is a defence, the whole 'getting a person to the hospital' defence is accepted, though rarely, and in very limited and extreme circumstances.

Maybe the duress defence can be just rephrased as 'necessity to leave an area'...

dermot_sheehan

In theory yes

in practice nearly impossible to show.

Yeah, found a few references to it in Pierce's book, apparently duress is a defence alright but the bar is set very very high.

Goesague

There is no reported Irish decision on the point. If a genuinely hard case comes up there is a reluctance to send it to the High Court.

MrPudding

Deleted User wrote: »

Yeah, found a few references to it in Pierce's book, apparently duress is a defence alright but the bar is set very very high.

Here is the commentary tacked onto the end of the report for Moss v Howdle 1997 JC 123, 1997 SLT 782, 1997 SCCR 215.

wrote:

This case clarifies the position regarding the scope of the defences of necessity and coercion, subsuming them under a general defence of what might be called the prevention of great bodily harm to any person. It also holds that the defence is available to any offence, but murder may still be special: cf., Thomson v H.M. Advocate; R. v Howe [1987] A.C. 417; [1987] 2 W.L.R. 568; [1987] 1 All E.R. 771; 85 Cr. App. R. 32. The High Court did not consider whether the defence went to mens rea or actus reus. Nor did they refer to the sheriff's view, which is no doubt correct, that speeding is an offence of strict liability. But if the defence applies to offences of strict liability, it can hardly be a question of mens rea. Again, it seems a reasonable inference from what the court did say that the accused does not have to show that his will was 'overcome'.


All the above suggests that what is at issue is a question of choice of values (cf., Gordon's Criminal Law (2nd edn), paras 13-02 to 13-05). If that is so, then the instant case can be seen as holding that the only value which justifies the commission of any crime, however trivial, is that of the prevention of death or great bodily harm, and that the aim, for example, of extinguishing a fire in one's neighbour's house where only property was at risk, would not justify stealing a third party's fire extinguisher, breaking the speed limit, or even breaking into the neighbour's house in a way which caused damage. At one time, one could be confident that such situations would never reach the courts, but these days one cannot be quite so sure.


The reference to a 'prudent' alternative course of action highlights the consideration that the starting-point of any defence of necessity—of which self-defence is arguably merely a subclass—is that what was done was necessary, but that its necessity, or perhaps more accurately the accused's choice of action, is not to be weighed in too fine a scale.

The facts aren't in anyway similar to drink driving, but necessity was raised (unsuccessfully) as a defence.


This one is interesting:


DAWSON v DICKSON - 1999 SC(JC) 315


An off duty fireman moves an appliance whilst drunk and hits a police car. He argued necessity as the appliance needed to be moved to allow an ambulance to take a critically ill person to hospital. Defence FAIL. Appeal FAIL.


One where it worked, and I think this probably matches what you want quite well, DPP v Bell [1992] RTR 334. Let me know if you can't find it.


Director of Public Prosecutions v Tomkinson is interesting. This relates to a woman who drove 72 miles and was well over the limit on arrival at her destination. She claimed duress and was initially successful. The DPP appealed and were successful.


So, it looks like, from a UK perspective anyway, it is possible, but it will turn on the facts.



MrP

johnnyskeleton

I would imagine that if you came home after a few pints and as you went in the door some masked raiders held you and your family at gunpoint and demanded that you drove them to the bank you work in so that they can rob it and you do so but along the way the gardai stop you for swerving, breathalise you, realise there are armed raiders and arrest the lot of you then charge them for tiger kidnapping and charge you for drink driving and they ultimately are convicted of attempted robbery/false imprisonment/firearms etc then yes, I think you could probably raise duress as a defence to drink driving.

However, if you were in the pub (obviously to raise duress/necessity you cannot be already intoxicated and in the car) and someone was injured and you felt it necessary to drive them to the hospital I don't think necessity/duress would apply.

Simililarly if you are drunk in a pub and someone threatens to kill you I don't think that it could be successfully raised, even if you believed them.

Although it is not clear, I think duress has to have an element of inadvertence to it i.e. there is no other option. In the former case, there is no realistic option but to comply. In the middle one there is no reason not to call an ambulance or taxi or get a sober person to drive them. In the latter case I suppose instead of jumping into your car you could run away or call the bouncers or whatever, and so long as there is another reasonable alternative, which a judge will probably try to find, then duress doesn't really apply.

That's just my view though, as already pointed out we won't know until someone tries it, gets convicted and brings a case to the High Court (and, of course, assuming the High Court will listen).

MrPudding

johnnyskeleton wrote: »

I would imagine that if you came home after a few pints and as you went in the door some masked raiders held you and your family at gunpoint and demanded that you drove them to the bank you work in so that they can rob it and you do so but along the way the gardai stop you for swerving, breathalise you, realise there are armed raiders and arrest the lot of you then charge them for tiger kidnapping and charge you for drink driving and they ultimately are convicted of attempted robbery/false imprisonment/firearms etc then yes, I think you could probably raise duress as a defence to drink driving.

That would be a very extreme case, but I think you would undoubtedly be successful.

johnnyskeleton wrote: »

However, if you were in the pub (obviously to raise duress/necessity you cannot be already intoxicated and in the car) and someone was injured and you felt it necessary to drive them to the hospital I don't think necessity/duress would apply.

I think it would depend. In Moss v Howdle the issue was speeding. The passenger said something about being in a lot of pain and the driver broke the speed limit to try to get him to hospital. As it turns out it was only a cramp. The court held that had the driver taken time to assess the problem he would not have had to speed. I think, at least in the UK, if a person’s life was genuinely at risk, and the action you took while drunk would be the same as a reasonable sober person would have taken, then you could be successful.

johnnyskeleton wrote: »

Simililarly if you are drunk in a pub and someone threatens to kill you I don't think that it could be successfully raised, even if you believed them.

IN the UK it seems to come down to what would a sober person in your position do.

johnnyskeleton wrote: »

Although it is not clear, I think duress has to have an element of inadvertence to it i.e. there is no other option. In the former case, there is no realistic option but to comply. In the middle one there is no reason not to call an ambulance or taxi or get a sober person to drive them. In the latter case I suppose instead of jumping into your car you could run away or call the bouncers or whatever, and so long as there is another reasonable alternative, which a judge will probably try to find, then duress doesn't really apply.

I suppose this is what I meant when I said it would turn on the facts. If you are in the country, for example, and it will take sometime for an ambulance to arrive and you genuinely believe, or more importantly a reasonable sober person would believe, that the person will die if you wait for an ambulance and that same reasonable sober person would believe that driving them to the hospital is the only option available to save their life, then duress probably should be available.

MrP

Bosco boy

MrPudding wrote: »

That would be a very extreme case, but I think you would undoubtedly be successful.

I think it would depend. In Moss v Howdle the issue was speeding. The passenger said something about being in a lot of pain and the driver broke the speed limit to try to get him to hospital. As it turns out it was only a cramp. The court held that had the driver taken time to assess the problem he would not have had to speed. I think, at least in the UK, if a person’s life was genuinely at risk, and the action you took while drunk would be the same as a reasonable sober person would have taken, then you could be successful.

IN the UK it seems to come down to what would a sober person in your position do.

I suppose this is what I meant when I said it would turn on the facts. If you are in the country, for example, and it will take sometime for an ambulance to arrive and you genuinely believe, or more importantly a reasonable sober person would believe, that the person will die if you wait for an ambulance and that same reasonable sober person would believe that driving them to the hospital is the only option available to save their life, then duress probably should be available.

MrP

I think the gardai would use common sence in the senario you mentioned when they stopped the car and started the investigation, the armed robbery would be a priority and i'd say they would look for medical assistance for the driver immediately and that would take priority, discresion would be the order of the day. Its likely if it went to court the judge would be disgusted that cop on wasnt used, they dont like to hammer victims with road bans and fines. The doo gooders will have a problem with this i guess!!!

Bosco boy

sorry, was referring to the armed robbery and kidnapp senarios