Criminal Law, Second Edition, Simester and Sullivan (updated 18.05.05)

Duress and Mistake, Page 595

R v. Martin [2000] 2 Cr App R 42

D had carried out two robberies and did not dispute his involvement. He claimed to have acted only because of the threats of two men, who lived on his estate, to cause serious harm to himself or to his mother unless he carried out robberies on their behalf. The reality of these threats remained a matter of conjecture. At trial the jury were asked to consider whether D reasonably believed and had good cause to fear for his or his motherÆs safety.

Surprisingly, the Court of Appeal ruled that reference to a reasonable belief instead of merely a genuine belief was a misdirection. Recall that, in Graham [1982] 1 WLR 294, Lord Lane CJ expressed the view that a valid plea of mistake relating to the presence of duress had to be based on reasonable grounds; an approach consistently confirmed by the Court of Appeal and approved by the House of Lords in Howe [1987] AC 417.

Why then a misdirection? Giving judgment for the Court of Appeal, Mantell LJ observed that prior to the decision in Graham, Lord Simon of Glaisdale had queried in DPP v. Lynch [1975] AC 653 (at 686) whether it was contrary to principle to require a fear of duress to be based on reasonable grounds. Furthermore, Lord LaneÆs analysis was considered by Mantell LJ to be flawed by his assumption that duress and self-defence were analogous, whereas a subjective approach was taken to mistakes relating to the need for self-defence. Finally, Mantell LJ purported to follow the Court of Appeal's decision in Cairns [1999] 2 Cr App R 137, a case of duress of circumstances where, according to Mantell LJ, a subjective approach to mistake was taken by the court.

With respect, his Lordship's reasoning does not convince. In Lynch, Lord Simon's remarks were mere passing dicta, which left open the very question raised. It is true that, in Graham, Lord Lane CJ drew a brief analogy with self-defence, but the analogy involved an entirely different dimension of duress; the Chief Justice was comparing the requirement in self-defence for reasonable force with the requirement in duress for reasonable fortitude. Hence the analysis was not undermined in the way Mantell LJ suggests. Most surprising of all is the interpretation put on Cairns, a case where Mantell LJ himself delivered judgement for the Court of Appeal. In Cairns, the trial judge had given a direction suggesting that a threat of death or serious harm must, in fact, have been present. Quite rightly this was said to be a misdirection, as otherwise there would be no scope for pleas of mistaken duress at all. In his judgment, Mantell LJ cited approvingly the following words of Simon Brown LJ (as he then was) in Martin (1989) 88 Cr App R 343, 345-6:

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. (At 141; emphasis added.)

Nothing that Mantell LJ said in Cairns before or after his approval of this passage is at odds with it.

All that said, if, post-Martin, a subjective approach is now to be adopted to mistakes regarding duress, there is a considerable gain in consistency of approach between mistaken self-defence and mistaken duress. This is as it should be, particularly given the close affinity that duress of circumstance cases, such as Willer (1987) 83 Cr App R 225 and Conway [1989] QB 290, have to cases of self-defence.