Director of Public Prosecutions v Mullally

Duress or necessity may provide a defence to a charge of driving with excess alcohol. Once raised, the prosecution must disprove both the defendant’s genuine belief that death or serious injury would result without the offence and the objective reasonableness of the response. The response must remain necessary when the offence is committed, and the defendant must take any reasonable escape route realistically available. Where the police are present and can provide protection, continuing to drive away from the danger will ordinarily fall outside the response of a sober person of reasonable firmness sharing the defendant’s characteristics. The defence is tightly circumscribed and applies only while the threat remains effective.

The respondent was prosecuted under section 5(1)(a) of the Road Traffic Act 1988 after driving with 77 micrograms of alcohol in 100 millilitres of breath. She had driven away after an assault and threats by her sister’s partner, believing that she and her daughter remained at risk.

The justices accepted that her fear was genuine and that it continued throughout the journey. They acquitted her, finding that the prosecution had failed to prove that she was not acting under duress. The prosecution appealed by way of Case Stated, asking whether the justices were entitled to reach that conclusion, particularly after police arrived at the sister’s address.

1. The appeal was allowed. The justices’ question was answered “no”, and the case was remitted with a direction to convict.

2. Duress or necessity was available in principle. Once raised, the prosecution bore the burden of disproving either that the defendant genuinely, though possibly mistakenly, believed that death or serious injury would result to herself or a person whose safety she could reasonably regard herself as responsible for, or that a sober person of reasonable firmness sharing her characteristics might have acted similarly. The threat also had to remain effective when the offence was committed, and there had to be no reasonable escape route or other means of dealing with the situation.

3. The justices were entitled to accept that the respondent’s fear was genuine and sufficiently serious. They erred, however, in their assessment of the objective element. Leaving the address and initially driving away could be reasonable on the particular facts. Once the respondent knew that the police had arrived, it was no longer necessary to continue driving while over the limit to avoid serious assault.

4. The presence of police who could provide appropriate protection removed the immediate threat, irrespective of the respondent’s nightclothes or whether she knew the individual officers. There was no suggestion that the aggressor was armed or that the police could not control the situation. The subsequent drive of approximately half a mile therefore fell outside the response of a reasonable person.

5. The circumstances could properly be taken into account in mitigation of sentence.

• High Court (Administrative Court): On the prosecution’s Case Stated appeal, the court held that the justices were not entitled to conclude that the prosecution had failed to disprove duress. The case was remitted with a direction to convict.
• Justices: The respondent was acquitted after the justices found that her genuine fear remained throughout the journey and that the prosecution had failed to prove that she was not acting under duress.