Conway, R. v

Facts

The defendant was sitting in a parked car with a passenger who had been the target of an earlier shooting. Two men approached the car and the defendant, believing that they were about to attack the passenger, drove off at speed. The men were plain clothes police officers.

History

The defendant was convicted of reckless driving after the trial judge ruled that the defence of duress of circumstances should not be left to the jury. He appealed to the Court of Appeal.

Issue

Whether a person can rely on duress of circumstances, where he commits an offence to avoid death or serious injury arising from the situation and not from a threat to make him commit it, and what the limits of the defence are.

Held

Appeal allowed and the conviction for reckless driving quashed. The defence of duress of circumstances should have been left to the jury.

Ratio

• Necessity can be a defence to a charge of reckless driving when it takes the form of duress of circumstances, where the defendant acts to avoid a threat of death or serious injury to himself or others arising from the circumstances.
• The defence is available only where, from an objective standpoint, the defendant can be said to have acted in order to avoid a threat of death or serious injury to himself or to another.
• On the facts the defence was open, because there was evidence that the defendant genuinely feared for his passenger, and the jury should have been asked whether the fear and the response were such as the defence requires.

Key reasoning

• The law of duress by threats provided a parallel, and there was no reason in principle to deny a defendant a defence where the threat arose from circumstances rather than from the words of another person.
• The court recognised that earlier authority on driving offences had developed a narrow form of the defence which could be extended to this type of case.
• Because the defendant had put forward evidence of a genuine fear of death or serious injury, the issue should have gone to the jury.

Where it fits in the module

Topic 8 on defences raises the question of how the law deals with those who commit offences under pressure from circumstances. Conway shows the courts using the model of duress by threats to create a new form of defence in place of an uncertain general defence of necessity.

Criticisms

• Introducing the defence through case law without legislative authority means its boundaries are uncertain, in particular on the type of offences to which it applies and the role of a reasonable belief.
• The relationship between the belief of the defendant and the objective standpoint that the court required is left unclear, so a defendant who acts on a genuine but mistaken belief in danger cannot tell whether the defence will be available.
• Describing the defence as duress, not necessity, obscures its true nature as a justification based on weighing harms and creates an unclear relationship between excuse and justification.