Date: Fri, 30 Nov 2007 11:20

From: Robert Stevens

Subject: Third party duress and battery

I am not completely sure whether Ashley is right or wrong (although I am minded to think it right) but I don't think it is inconsistent with R v Governor of Brockhill Prison ex p Evans (no 2) (which is clearly right).

Our rights, or perhaps more accurately our interests, may conflict. Where they do, one party may possess a privilege which he would not otherwise have. So if I kick a football through your window you can keep the ball until I pay for the damage. Normally keeping someone else's property would be conversion. If you are on my land without permission I can use reasonable force in evicting you, which would otherwise be a battery.

Similarly, if you point a gun at my head I have a privilege to defend myself. Ashley is about the scope of that privilege, and holds that my belief that my actions in self defence are necessary must be reasonable, an honest belief won't confer upon me the exceptional privilege. (The criminal law is different, there an honest belief suffices.)

By contrast ex p Evans did not concern the scope of an exceptional privilege generated by the conflict of two rights. Rather it concerned whether a claim for false imprisonment could be brought by a prisoner for detention beyond that permitted by statute, even where the belief that there was such a statutory privilege was completely reasonable. Held that there was liability. Quite right too. There was no question of line drawing between two conflicting rights.

As to the duress question, I think we need to emphasise that what is important is whether the claimant has objectively manifested consent to what has been done. The absence of consent subjectively will not prevent the operation of the defence. So if I go into a boxing ring wearing boxing gloves and shorts, I cannot complain if I am punched on the nose, even if I did not (in my head) consent to the blow. Unless the duress is so severe that it can no longer be said that the claimant is responsible for the appearance which has been created, there should be a defence.

Re T is very close, but is not quite the same as the original hypo. There the question was whether the privilege in cases of necessity that hospitals have to carry out transfusions could be lost where the patient had stated that she did not consent, albeit under pressure which was applied by a third party.

RS

Quoting "Jones, Michael":

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.

Robert Stevens
Professor of Commercial Law
University College London

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