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Duress as Defence to Breach of Byelaw
Eden DC v Braid [1999] RTR 329
The defendant, who was licensed by the local authority to drive a taxi, restricted to the carriage of six persons, was called to a club to collect a fare. At the club, the customer (who gave his name as Gypsy Joe) and nine other persons piled into the taxi, all of them gypsies and travelling people, who were in the town for the annual horse fair, which was a time of drunkenness and disorder.
When the driver requested some of them to leave, they became aggressive and, although they made no direct oral threat of violence, the driver (a man of over 60 years of age) feared that he would suffer physical injury, if he did not carry them all together, as they demanded, to their camp.
An enforcement officer followed them to the camp, where he counted the 10 passengers; but, when he spoke to the driver, the passengers became aggressive and he 'backed off'. Although they made no threat of physical injury to the officer, they told the officer that they would give him 'a good kicking', if he took action against the driver. The driver was charged with an offence contrary to Byelaw 11.
He admitted the facts constituting the charge, but pleaded duress by way of defence. The justices held that the passengers' conduct amounted to an implied threat of violence aimed at the driver (as well as the enforcing officer) and that the driver reasonably feared physical injury.
They also found that any reasonable person would have been afraid and that that was shown by the fact that the enforcing officer (an ex-police officer, used to drunkenness and disorder and violence from gypsies) chose to 'back off' when confronted by them.
Byelaw 11 of the Eden District Council Byelaws made pursuant to s 68 of the Town Police Clauses Act 1847 provides that the proprietor and driver of a hackney carriage shall not carry or permit to be carried a greater number of passengers than those specified on the plate affixed to the carriage.1. The first issue was whether this was truly a case of duress, in the light of the fact that the driver admitted that he knew that he was not entitled to, and had no need to, drive the taxi with 10 passengers in it, since he could have got out and entered the club and telephoned for the police.
He later said that he had acted as he did, because he knew that the local police station would not be manned at that time of the night, and his firm had no other taxi available to share the load. He claimed that he had been too scared to 'think straight', even though he admitted that no oral threats of violence had been uttered (other than the 'good kicking' which would be received, not by him, but by the enforcing officer).
The defendant argued that the court should judge the question of duress in the circumstances as the defendant saw them, that is that he was surrounded by a drunken, disorderly and violent group of the kind the town was accustomed to at the annual horse fair, so that he could expect nothing less than physical injury at their hands. The clerk had advised the justices that if the driver had good cause to fear physical injury, it was for the prosecution to show that a person of reasonable firmness would not have been afraid in this way.
The justices found that the refusal to leave the taxi meant that the passengers' conduct was impliedly threatening, so that the driver's belief that he would be physically assaulted was reasonable.2. It was argued before the justices that the offence created by the byelaw was an offence of strict liability and that, for that reason, the defendant's argument based on duress was irrelevant.
Thus, the questions asked in the case stated were (1) whether the justices were justified in finding that there was duress, and (2) if so, whether duress can, as a matter of law, be a defence to a charge of an offence of strict liability.Held, dismissing the appeal:
* 1. the facts supported a defence of duress; and
* 2. there is no reason why duress should not be available as a defence to the charge of an offence of strict liability.
Commentary
1. The Divisional Court praised the high quality of the advice given to the justices by their clerk, modelled, as it was, on the direction of Lord Lane CJ in R v Graham [1982] WLR 294, as accepted by the House of Lords in R v Howe [1987] AC 417.
The Divisional Court agreed that the passengers' refusal to leave the taxi gave the driver every reason to fear physical injury, as the later conduct of the enforcement officer confirmed. It has been held that, if the prosecution is able to prove that the defendant failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective, the defendant can no longer rely on duress as a defence.
The Divisional Court accepted this proposition, but held that here the driver had no viable option open to him but to drive all 10 passengers to their camp. As that was a finding of fact by the justices, the court declined to intervene, since that finding was not irrational.
Both members of the court added that, had it been their duty to make a finding in the first place, they would have had no hesitation in finding as the justices had done. Thus, although Lord Bingham CJ described duress as 'a defence which can rarely succeed and its bounds should not be widened', the defence was held to be valid in the circumstances found by the justices.
The Lord Chief Justice observed that the purpose of the byelaw was to ensure the safety of passengers, whereas here it was the passengers who insisted on the driver's undertaking the hazardous journey.2. The second contention—that duress has no place as a defence of strict liability—was not pursued before the Divisional Court and the court remarked that no authority had been advanced for that contention.
The contrary is implied in Archbold, Blackstone and Smith and Hogan and the court concluded that there is no reason why the defence should not be available on such a charge, for even in such a case, there must be proof of the intention to do the prescribed act, and that may be negatived by duress.
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