Cases

R v Wilkinson [2018]
The appellant, a taxi driver, was convicted of false imprisonment for having returned a passenger to where he had
picked her up after she had informed him she was not intending to pay. He relied upon s.3 of the Criminal Law Act
1967, arguing that he had used reasonable force to prevent the passenger from committing a crime. His appeal
was dismissed on two grounds. First, refusing to pay, although wrongful, was not a crime. Secondly, even if it were
a crime, his use of force in taking her back to the start of the journey did not prevent it from occurring. In effect, it
was a retaliatory rather than a preventive measure.

R v Martin (Anthony) [2001]

D shot dead a burglar because he overestimated the danger to which he was subject. He may have done so due to
a psychiatric disorder. The Court of Appeal, upholding D’s conviction, restated the rule that the question as to how
much force is lawful is a question of law and is an objective question. D’s honest assessment of the degree of force
necessary was not decisive. It could not be objectively reasonable to shoot a burglar in the absence of any
evidence of physical threat, however scared he was.

R v Clegg
A private soldier serving with the Parachute Regiment in West Belfast fired four shots into an oncoming car at a
road block. The final shot killed a passenger in the back seat. D’s defence was that he had fired because he had
thought that a colleague’s life was in danger. In relation to the first three shots the judge had accepted that D may
have fired in self-defence or in defence of his colleague. However, the fourth shot had been fired at the car after it
had passed. It could no longer, therefore, ground the defence of self-defence since the danger had passed. Any use
of force thus became automatically unreasonable whatever D’s degree of stress.

Beckford v The Queen  [1988] AC 130 Privy Council

The appellant was a police officer. He was issued with a shot-gun and ammunition and sent with a number of other
armed police officers to a house. According to the appellant a report had been received from Heather Barnes that
her brother Chester Barnes was terrorising her mother with a gun. Heather Barnes, however, denied that she had
made a telephone call to the police or that her brother was armed.The appellant said that on arriving at the house,
he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him,
the appellant stated that Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In
fact no gun was ever found. The trial judge directed the jury:
"A man who is attacked in circumstances where he reasonably believes his life to be in danger or that is in danger
of serious bodily injury may use such force as on reasonable grounds he thinks necessary in order to resist the
attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional."
The jury convicted him of murder (which carries the death penalty in Jamaica). He appealed contending the judge
was wrong to direct that the mistake needed to be reasonably held.
Held: The appeal was allowed and the conviction was quashed. The test to be applied for self-defence is that a
person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence
of himself or another.

Field [1972]
D was told that V was coming round to attack him. D remained where he was and, in repelling V’s attack, killed
him. The prosecution case was that D’s use of force was unreasonable since he had the opportunity to retreat and
seek police protection. The Court of Appeal rejected this argument and allowed the defence.

Rashford [2005]
D mounted a revenge attack on V. V himself went on the attack, along with some friends. D then sought to defend
himself and killed V. The Court of Appeal stated that the fact that D provoked the attack did not exclude his use of
the defence. The defence was available so long as V’s retaliation was of a nature to justify the use of force in self-
defence and if the violence used was not disproportionate to the perceived threat.

Yaman [2012]
The Court held that, even if it was assumed that in attacking a court-appointed locksmith with a hammer, D had
mistakenly ‘done what he honestly and instinctively thought was necessary’ to resist a supposed burglary on the
family shop, the jury must still inevitably have concluded that the force he used was excessive. The trial judge’s
failure to refer to s.76(7) when directing the jury was not therefore fatal to D’s conviction for wounding under s.18
of the OAPA 1861.
R (Collins) v The Secretary of State for Justice [2016]
Collins was tackled by a householder while intruding in his house. The householder put him in a headlock which
caused serious injury from which Collins was not expected to recover. The question for the court was whether
subs.(5A) had the effect of rendering any use of force other than grossly disproportionate force, reasonable force.
The Queen’s Bench Divisional Court ruled that, while grossly disproportionate force cannot be reasonable and so is
unlawful, if the force used is disproportionate without being grossly disproportionate, it may or may not be
reasonable. The decision is for the jury, taking into account all the householder’s circumstances.

R v Ray [2017]
The Court of Appeal approved the approach in R (Collins) v The Secretary of State for Justice [2016]. Whether,
despite being disproportionate, it is reasonable or not is a matter for the jury, taking into account the context and
all the circumstances. The most important of those matters is, of course, the state of mind induced in the
householder by the intrusion, the time of the intrusion and the manner of its execution. Presumably, other things
such as whether the householder has suffered a similar intrusion in the past will also be taken into account.

R v Riddell [2017]
The defendant, having been pursued in her car by another driver and brought to a stop, sought to escape a
threatened attack by nudging the pursuer aside with her car. On a charge of dangerous driving, the trial judge did
not put the defence of self-defence to the jury. Instead, he directed them in relation to the defence of duress of
circumstances whose elements were less favourable to the defence. The jury convicted. The defendant’s appeal
was successful. What she had done in response to the perceived threat – using her car to nudge the pursuer out of
the way – involved the use of force and so the defence was applicable.

Graham [1982]
In Graham the defendant lived in a ménage à trois with W, his wife, and K, his homosexual lover. One night, after D
and K had been drinking heavily, K put a lighting flex round W’s neck and then commanded D to pull at the other
end. D did so and his wife was strangled. Both D and K were charged with murder. D pleaded not guilty, claiming
that his action was coerced by his fear of K. Although the judge allowed the defence to go to the jury, it convicted
D of murder. The Court of Appeal upheld the conviction.

R v Howe [1987]
Howe & Bailey both aged 19 and Bannister aged 20, were acting under orders of Murray aged 35. The charges
related to two murders and one conspiracy to murder. The first murder related to a 17 year old male victim, Elgar.
Murray had driven them all to a public lavatory. Elgar was naked and sobbing and was subjected to torture and
compelled to undergo sexual perversions. Howe and Bannister took part in kicking and punching Elgar and were
told they would succumb to similar treatment if they did not do as Murray ordered. Bailey strangled Elgar resulting
in his death. The second killing took place the following night at the same location on a 19 year old male Pollitt.
Murray had ordered Howe and Bannister to strangle him and they complied. The third charge related to a similar
incident, however, the intended victim managed to escape.
Held:
The defence of duress is not available for murder whether it be a principal in the first or second degree. 
Obiter dicta - The defence should not be available to one who attempts murder.
Lord Griffiths:
“We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest
duty is to protect the freedom and lives of those that live under it. The sanctity of human life lies at the root of this
ideal and I would do nothing to undermine it, be it ever so slight. 
Attempted murder requires proof of an intent to kill, whereas in murder it is sufficient to prove an intent to cause
really serious injury. It can not be right to allow the defence to one who may be more intent upon taking a life than
the murderer.”

R v Martin [1989]
The appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to
commit suicide if he did not drive their son to work. His wife had attempted suicide on previous occasions and the
son was late for work and she feared he would lose his job if her husband did not get him to work. The appellant
pleaded guilty to driving whilst disqualified following a ruling by the trial judge that the defence of necessity was
not available to him. He appealed the ruling.
Held:Appeal allowed. The defence of duress of circumstances should have been available to him following the
decisions in R v Conway and R v Willer. No distinction was to be drawn between driving whilst disqualified and
reckless driving. It did not matter that the threat of death arose through suicide rather than murder.
Simon Brown J:
“The principles may be summarised thus: First, English law does, in extreme circumstances, recognise a defence of
necessity. Most commonly this defence arises as duress, that is pressure upon the accused's will from the wrongful
threats or violence of another. Equally however it can arise from other objective dangers threatening the accused
or others. Arising thus it is conveniently called "duress of circumstances".
Secondly, the defence is available only if, 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.
Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the
jury, who should be directed to determine these two questions: first, was the accused, or may he have been
impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause
to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of
reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the
accused acted, if the answer to both those questions was yes, then the jury would acquit: the defence of necessity
would have been established.”

Valderrama [1985]
The defendant was threatened both with exposure as a homosexual and threats to himself and his family if he did
not smuggle cocaine. The Court of Appeal said that if D had committed the offence solely because of the threat to
expose him as a homosexual, then he would not be able to rely on duress, even though he had also been
threatened with death. However, if he had committed the offence at least in part due to the latter threat the
defence would be available.

A (RJ) [2012]
The defendant was convicted of the offence of perverting the course of justice when she falsely retracted
allegations of rape against her husband. She did so, apparently, in the belief that she would suffer serious injury by
her husband if she did not. This fear was real but not based on reasonable grounds since no threat of violence had
been made to her when she made the false retractions on which her prosecution was founded.
Hegarty [1994]
The defendant pleaded duress to a charge of robbery and possession of a firearm. He claimed that he had been
threatened with violence against his family if he refused. The court refused to allow medical evidence that D was
‘emotionally unstable’ and in a ‘grossly elevated neurotic state’ to vary the standards of fortitude to be expected of
him.
Bowen [1997]
The defendant’s very low level of intelligence was similarly ignored on the basis that reasonable courage can be
expected of everyone, including those with severe learning difficulties.
Gill [1963]
D was convicted of the theft of his employer’s lorry. The Court of Appeal held that duress was not available where
the defendant had been left alone outside his employer’s yard, which he was due to rob, and therefore was well
able to raise the alarm and escape the threat.
Sharpe [1987]
The defendant joined a criminal gang. He later participated in a robbery on a Post Office, in which a sub-
postmaster was killed. D’s defence to manslaughter was duress: he claimed that he had undertaken the robbery
only because he had a gun to his head. The defence was rejected upon the basis that D voluntarily joined the gang,
knowing that coercion might later be brought to bear to commit an offence

Heath [2000]
A drug user who was coerced into supplying a class B drug by his own supplier who he had not paid was denied the
defence on the basis that he should have known the risks of mixing with drug dealers. A similar decision was
reached in Mullally [2012]

Gotts [1992]
D was coerced by his father into helping him to kill his mother. The Court of Appeal ruled that the defence of
duress was not available.

Martin [1989]
D drove his stepson, who had overslept, to work although he was a disqualified driver. D had been told by his wife
that if he did not do so the stepson would lose his job and she would commit suicide. The Court of Appeal ruled
that the trial judge was wrong in not allowing the defence of duress of circumstances to be put to the jury.

Pommell [1995]
The defence was made available for the first time to a case not involving a driving offence. D was charged and
convicted of being in possession of a loaded machine gun. D claimed that he had taken possession of it to prevent
the owner shooting to kill and was intending to take it to the police the next day.

S and L [2009]
Duress of circumstances was ruled available to a charge of employing unlicensed security guards as a means of
addressing the risk of terrorist attack on their premises which abutted a public highway.

R v Petgrave [2018]
The Court of Appeal affirmed that duress of circumstances would operate in a case where the defendant was
charged with causing serious injury by dangerous driving, contrary to s.1A of the Road Traffic Act 1988, when he
had mounted the pavement and injured the victim in trying to escape from a dangerous gang.

Re F [1990]
Doctors in a mental hospital sought a declaration that it would be lawful for them to perform a sterilisation
operation on a mentally incompetent (female) patient who had formed a sexual relationship with a fellow patient.
The House of Lords concluded that it was in her overall ‘best interests’ for the operation to proceed on a balance
of all her interests, including her interest in remaining free from the physical and psychological effects of
pregnancy, abortion or childbirth on the one hand, and her interest in having procreative capacity and remaining
free from surgical interference on the other. Lord Goff, for the House of Lords, underlined its justificatory nature by
stating that it was not of the essence that there be some emergency requiring immediate action, although in many
cases this would be present. Operations and other interventions may be justified even if performed for other than
clinical reasons. He said:
these might include such humdrum matters as routine medical or dental treatment, even simple care such as
dressing and undressing and putting to bed.

Re A (Conjoined Twins) [2001]

The defence of necessity was used to justify an operation to separate conjoined twins who shared a heart. The
necessity for the operation was that without it, both twins would quickly die. The problem, however, was that the
inevitable consequence of the operation would be the immediate death of the twin lacking a heart and that was
hardly in her best interests! Would the proposed operation be lawful in the light of this? Doctrine holds that
intentional acts calculated to produce certain death is murder, and duress of circumstances is no defence to
murder. If necessity was to operate as a defence here, therefore, it would have to be, like self-defence, in its
justificatory form. Brooke LJ (at 1052) explicitly adopted the justificatory lesser of two evils basis for the defence.