Date: Fri, 30 Nov 2007 09:27

From: Michael Jones

Subject: Third party duress and battery

On duress vitiating refusal of consent to medical treatment see Re T (Adult: Refusal of Treatment) [1993] Fam 95 (CA) - adult patient refusing blood transfusion held to have had her will overborne by her Jehovah's Witness mother; patient then found to lack capacity to refuse consent to treatment.

The English Court of Appeal has recently held that an honest and reasonable mistake of fact may permit a defendant to rely on self-defence (notwithstanding Sedley LJ’s comments in Hepburn v Chief Constable of Thames Valley Police). See Ashley v Chief Constable of Sussex [2006] EWCA Civ 1085; [2007] 1 WLR 398 - police officer shot dead a suspect in the (incorrect but reasonable) belief that the suspect was about to use lethal force on the police officer. Difficult to reconcile this with the decision of the House of Lords in R v Governor of Brockhill Prison Ex p Evans (No. 2) [2001] 2 AC 19 in relation to false imprisonment.

Michael

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Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Tsachi Keren-Paz
Sent: Thu 29/11/2007 15:27
To: Tettenborn, A;
Subject: ODG Re: third party duress and battery

I'm thinking mainly in the context of forced prostitution: that a victim could sue in battery despite the arguable apparent consent to provide commercial sex. I'd argue that 1) liability for battery should be strict in any event i.e. reasonable mistake is not a defence (which seems to be the case in England, according to dicta (eg Sedley in Hepburn v Chief Constable of Thames Valley Police and based on the false imprisonment Evans case, but not in Canada: Sansalone); 2) Given the fact that the victim does not really have a way to convey her being under duress without a serious risk to herself (which seems to be the case in your example as well), she should not be estopped.

Of course, the lower social value of purchasing commercial sex in comparison to providing abortion services, might support liability in the commercial sex context, while oppose liability in the abortion example, although such a distinction, I think, is not easy to make on grounds of principle.

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