Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
It is well recognised that a defendant may be excused if he has committed a crime (other than murder, attempted murder or treason) because he was threatened by someone that, if he did not do so, he or another person for whose safety he would reasonably regard himself as responsible would be killed or would suffer serious harm. Where duress is raised, the burden of proof is on the prosecution.
The scope of the defence is fairly clear. Although in the past there was some uncertainty as to the types of threat which would suffice, it now appears to be settled that the defence applies only where there were threats of death or grievous bodily harm. Furthermore, the defence is not available if the jury are sure that a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats.
In a series of decisions in the 1980s, the Court of Appeal recognised a related defence. In Wilier, D had driven along a pavement to escape from a gang of youths who intended violence towards him and his passengers. The Court of Appeal held that the judge had been wrong in refusing to let the defence of compulsion go the jury and treated the case as one of duress. Clearly, the facts in this case did not raise the defence of the traditional type. The youths did not say to Willer “drive recklessly or else we will beat up you and your passengers”. The real nature of the defence was explained by the Court of Appeal two years later in the case of Conway. This case also concerned reckless driving. D has been urged by his passenger to drive off quickly to escape two youths running towards the car. D feared, apparently with good reason, that the two youths intended a fatal attack upon his passenger. The Court of Appeal held that it was bound by Willer to the effect that duress was available as a defence. However, it was stated that the defence was properly termed “duress of circumstances” – a species of necessity analogous to duress in the traditional sense.
In Martin , D was charged and convicted of driving whilst disqualified. At his trial he put forward a plea of necessity asserting that his wife had threatened to commit suicide if he refused to drive their son to work. The trial judge decided that necessity was not a defence to the crime charged. On appeal, the Court of Appeal held that the defence of duress of circumstances should have been left to the jury. The Court of Appeal held that the ingredients of this defence were equivalent to those of “duress by threats.” That is, the defence is available if D has acted reasonably in order to avoid athreat of death or serious injury.
In DPP v Bell , the Divisional Court held that the defence was available where D had driven a motor vehicle with excess alcohol to escape a group of youths who were pursuing him.
In DPP v Hicks, the respondent was charged with driving with an alcohol concentration in excess of the prescribed limit. At trial, he claimed that his 19 month old baby was very sick and that he had been driving to an all-nigh chemist in order to obtain some medicine. The respondent said he did not have access to a telephone and therefore could not have called for a doctor and he did not wish to disturb the neighbours because of the lateness of the hour. His girlfriend gave evidence, stating that the child’s condition was bad but she did not think it was sufficiently bad to warrant taking the child to hospital. The justices accepted his defence and acquitted him. The prosecution appealed by way of case stated. The appeal was allowed. The Divisional Court held that there was no basis on which the defence could be found to be established on the facts. The defence was only available, first, if the driving was done to avoid consequences that could not otherwise have been avoided; secondly, if those consequences were inevitable and involved serious harm whether to the respondent onto some other person that he was bound to protect; thirdly, if the respondent did not more than was reasonably necessary to avoid the harm; and fourthly, if the danger of driving a motor vehicle with excess alcohol in his system was not disproportionate to the harm that he sought to avoid.
2. The Rationale for the Defence of Duress
Duress, when it applies, excuses the defendant’s conduct; it doesnot justify the commission of the offence. The distinction is animportant one. There is an element of approval or, indeed,encouragement in the case of justifications. Thus, for example, aperson who uses force to prevent crime is justified in what he does. He has a “right” to use force. An excuse, on the other hand, whilst anacknowledgement that the defendant does not deserve to be punished,does not exist to promote the behaviour in question. The victim ofduress does not have a “right” to commit the offence. Duress excusesthe conduct of the defendant because he was effectively denied a “ fairopportunity” to choose between obeying or disobeying the law . LordMorris in DPP for Northern Ireland v Lynch explained the law would be“censorious and inhuman” were it not to recognise the “powerful andnatural” instinct of self-preservation. In essence, the distinctionbetween justification and excuse is as follows: actors are excused;acts are justified. Excused conduct is wrong but because of theexcusing condition we can understand the predicament of the person whocommits a wrongful act and can conclude that a judgment ofblameworthiness is inappropriate. Justification, on the other hand,involves an assessment of the value of the conduct. Such conduct can bebeneficial in the sense of promoting a greater good .
In addition, not only would it be unfair to punish the accused forfailing to resist the threat if the person of reasonable steadfastnesswould have done likewise but, also , it is arguable that punishmentwould serve no rational purpose. If the defendant acted as a person ofreasonable steadfastness would in the circumstances, then it isreasonable to suppose that the threat of punishment would not influencehis decision, nor the decision of the ordinary person, to observe thelaw in a similar situation in the future.
The defence is not available, however, either to murder orattempted murder. Prior to Howe, a distinction was drawn betweenprincipals and accomplices to murder. Whilst the defence was notavailable to the actual perpetrator , it was available to theaccomplice .
The distinction drawn between accomplices and perpetrators of murderwas criticised as illogical and unsatisfactory. Professors Smith andHogan point out that it is not always true that the perpetrator ismore blameworthy than an accomplice. There may be little or no moraldifference between them. Professor Williams agreed and pointed outthat there is no moral distinction between them. Professor Williamsagreed and pointed out that there is no moral distinction between, forexample, the individual who is forced to drive a bomber to a pub andthe person who is forced to carry the bomb into the pub. When thematter came before the House of Lords in Howe, their Lordships agreedthat there was no valid distinction between the perpetrator of murderand an accomplice to it and overruled the decision in DPP for NorthernIreland v Lynch, holding that duress was not a defence to murder,irrespective of the degree of participation.
3. The Parameters of the Defence of Duress
The defence of duress operates where the accused has committed theactus reus of an offence with the appropriate mens rea but wascompelled to act as he did because of threats made by another. Wherethe defence applies, it is a complete defence.
First, the accused’s will must be overborne by threats of death orserious bodily harm. This includes threats to kill or seriously harma third party for whose safety D would reasonably regard himself asresponsible. In Baker and Wilkins the Court of Appeal held that thedefence was not available in cases where the defendant believed thecriminal act was necessary to avoid serious psychological harm.
Secondly, the Court of Appeal in Graham held that there are twoelements to the defence, the burden of proof being on the prosecution. The jury should consider whether:
(a) the accused was, or may have been, impelled to act as he didbecause, as a result of what he reasonably believed X had said done,he had good reason to fear that, if he did not so act, X would kill himor cause him serious injury; and
(b) a sober person of reasonable firmness, sharing the characteristicsof he accused would have responded to whatever he reasonably believed Xsaid or did by acting as the accused did.
These have been the parameters for many years, however a recentHouse of Lords case have narrowed these parameters somewhat. In thecase of R v Hasan the parameters were narrowed. H was convicted ofaggravated burglary. His defence was duress on the part of S who was aviolent gangster and drug dealer and boasted that he had committedthree murders; and S threatened that if H did not do the burglary heand his family would be harmed. The house to be burgled was known tohave a safe with a lot of money in it. H’s case was that S and a”lunatic Yardie” ambushed him; the Yardie drove him to the house wherethe burglary was to be committed; the Yardie stayed in the car, gave Ha knife and told him that he had a gun. H broke into the house butfailed to open the safe, was seen by the occupier and ran out. H had an”off the record” interview with police officers who were involved in aseparate murder inquiry. The reason for this confidential interview wasthat H said that he was in fear of S. He was not cautioned. The reportof the confidential interview contained nothing adverse to H’s interestin respect of the burglary. It was either entirely exculpatory orentirely neutral in effect. There were important differences betweenwhat H said during the confidential interview and what he said at histrial: in the confidential interview H did not say that he had takenpart in the second burglary because of threats made by S againsthimself and his family. According to that interview the threats had notbeen made until after the burglary. The judge ruled that the statementwas not a “confession” and would not be excluded under the Police andCriminal Evidence Act 1984, s.78; thus the Crown could cross-examine Habout it. As regards duress the judge directed the jury as follows:
“Question 1: Was the defendant driven or forced to act as he did bythreats which, rightly or wrongly, he genuinely believed that if he didnot burgle [the] house, his family would be seriously harmed or killed?If you are sure that he was not forced by threats to act as he did, thedefence fails and he is guilty. But if you are not sure go on toquestion 2. Would a reasonable person of the defendant’s age andbackground have been driven or forced to act as the defendant did? Ifyou are sure that a reasonable person would not have been forced to actas the defendant did, then the defence fails and he is guilty.If youare not sure, then go on to question 3. Could the defendant haveavoided acting as he did without harm coming to his family? If you aresure he could, the defence fails and he is guilty.If you are not surego on to question 4. Did the defendant voluntarily put himself in theposition in which he knew he was likely to be subjected to threats? Ifyou are sure he did, the defence fails and he is guilty. If you are notsure, he is not guilty.
The House of Lords held that the defence of duress was excluded whenas a result of the accused’s voluntary association with others engagedin criminal activity he foresaw, or ought reasonably to have foreseen,the risk of being subjected to any compulsion by threats of violence.There was no need to show foresight of coercion to commit the kind ofcrime of which the accused was charged .
The narrow issue. In what circumstances should the defence be availableto D who has courted the risk of being placed under duress by, e.g.freely becoming involved in the drug or terrorist-related activities?Should D be able to rely on duress where, having voluntarily exposedhimself to the risk of some pressure to commit crimes, he was not awarethat the pressure would be to commit offences of the type with which heis now charged. This strict formulation appears to be based explicitlyon a policy of restricting the defence. Lord Bingham distinguishesduress from other defences in which a more subjective stance has beentaken in recent years because in duress, “the defendant is seeking tobe wholly exonerated from the consequences of a crime deliberatelycommitted “.
Lord Bingham is stating that D who is forced to commit a crime on painof death or serious injury, has no defence because he voluntarilyjoined a criminal gang despite his having no idea he would be forced tocommit crime nor even that they might put him under some pressure. Thiscontrasts starkly with the approach taken in earlier cases where theemphasis was on the defence becoming unavailable where D voluntarilyexposed himself to a risk he had foreseen .
4. Duress and Murder
Lord Halisham regarded it as neither good law nor good morals nor,perhaps more importantly, good policy to suggest that the ordinary manof reasonable fortitude is not capable of heroism. He added that thesubject of criminal law was to protect ordinary lives and to set astandard of conduct which ordinary men and women are expected toobserve if they are to avoid criminal liability. In his Lordship’sopinion, it was not “just or humane” to withdraw the protection of thecriminal law from an innocent victim and in the name of “a concessionto human frailty” to offer protection to the “coward ”
It is submitted with respect, that this appears to requireunrealistic heroism and overlooks the fact that an appropriate standardis set by the second limb of the defence. Only if the jury believethat a person of reasonable fortitude would have or might have yieldedto the threat will the defence succeed. As Lord Morris pointed out inDPP v Northern Ireland v Lynch, standards of heroism should not bedemanded – in the “calm of the courtroom” – when they could not havebeen expected of the reasonably resolute person when the threat wasmade. Furthermore, the argument advanced by Lord Hailsham would applyequally to other crimes of violence, for example, wounding with intent– a crime for which his Lordship accepted the defence of duress would,in appropriate circumstances, be available .
Some of the “policy” reasons for denying the defence in cases ofmurder were explained by Lord Salmon in Abbott v R. Allowing thedefence would invite the danger of providing “a charter for terrorists,gang leaders and kidnappers”. D, if he were allowed to go free, mightbe approached again by the terrorist group and, having gained relevantexperience and expertise, commit a further murder.
The Court of Appeal in Gotts gave a further reason for restrictingthe availability of the defence: Lord Lane thought that the defence waseasy to raise and difficult for the prosecution to disprove beyondreasonable doubt.
Again, however, these arguments are arguments against the defencegenerally and do not justify the special treatment of murder andattempted murder. In any case, is there reason to suppose that thejury would be any less capable of recognising a bogus claim of duressthan one in respect of say, self-defence?
Lord Hailsham in Howe advanced a further argument. He state thatwhere the accused faced the choice between the threat of death orserious injury and deliberately taking an innocent life, a reasonableman might reflect that one innocent life is at least as valuable as hisown or that of his loved one. In such a case, if the man chooses tokill, he cannot claim that he is choosing the lesser of two evils.
There are two objections to this point.
First, and most importantly, the defence of duress is not based uponthe idea that the defendant chose the lesser of two evils. The errorlies in regarding duress as a justification. As explained above,duress is a defence because, if D was subject to immediate threatswhich were so powerful that the reasonable man would have acted in asimilar fashion, the law would lack detterent force and it would beunconscionably to punish D.
As Lord Edmund-Davies correctly observed in DPP for Northern Irelandv Lynch, to allow a defence is not necessarily to approve of thedefendant’s conduct, but simply to recognise that it is not deservingof punishment. Secondly, to give way to the threat might amount tochoosing the lesser or two evils, where, for example, the threat is tokill a large amount of people, say, the defendant’s family, unless hekills one individual.
Two additional arguments were put forward to justify the refusal of he defence in cases of murder.
Lord Bridge and Griffiths said that Parliament’s failure to enactthe recommendation of the Law Commission made 10 years previously wasan indication that Parliament had rejected the proposal. However asProfessors Smith and Hogan have pointed out, the matter has not beenput before Parliament for its consideration.
Lord Griffiths and Hailsham felt that the interest of justice wouldbe served in hard cases, especially those involving secondaryparticipation in murder under duress, by leaving issues relating to theculpability and punishment of those involved to administrativediscretion. It would be “inconceivable” according to Lord Griffith,that, for example, a woman who was forced to act as a getaway driverfor the principal offender would be prosecuted. In other cases, theParole Board might be expected to weigh fairly the relative culpabilityof the defendant and, where appropriate, advise the Home Secretary thatan early release would be justified.
However, leaving the fate of the defendant to discretionaryexecutive action is unacceptable, as the outcome is by no means certainand neither early release nor the granting of a royal pardon wouldremove the stigma of a criminal conviction for what most people regardas the most heinous crimes.
The decisions in Howe and Gotts mean that, when charged with murderor attempted murder, it is no excuse that, in the face of threats, theaccused behaved with what a jury would consider to be reasonablefortitude. The law seems to require suicidal heroism.
In many of the much-discussed homicide cases in which duress mighthave been pleaded, there was arguably no direct intention to kill: theactual death of the victim was not, in the eyes of the defendant,intrinsic to a successful conclusion of what she tried to do. Considerthe duress of circumstances case in which D, climbing a ladder tosafety from a rapidly sinking ship, dislodges the man above him who hasbeen paralysed by terror, in order that he (D) and others may climb tosafety. It is sometimes assumed that this is just the kind of casewhich demonstrates the injustice of denying a defence of duress ofcircumstances in murder cases . Much might be made to depend, however,on D’s direct intention. Although D may well foresee V’s death as thevirtually certain consequence of his (D’s) action in dislodging V, Dpresumably does not directly intend V to die, such that D would (in hiseyes) have failed in what he set out to do in pushing V off the ladderif V by chance survives. D presumably directly intends only to dislodgeV from the ladder. If D does not directly intend to kill V (and thiswill commonly be so) one might argue that D should have his defence ofduress, because he had not done something that is inexcusable underduress, namely unlawfully and directly intentionally killed aninnocent.
Whatever, in general, the mens rea of murder ought to be, by makingdirect intention to kill central to reform of duress as a defence inmurder cases, the Commission could have confined the denial of excuseto cases where a killing stems from such an intent. In this way, duressmight still have been a defence in many cases where homicide has beencommitted in the maelstrom of circumstances, without going so far as toexcuse the inexcusable.
5. Legal Theories of Excuse
There are two general theories, in criminal law of excuse and theseare the character theory and the capacity theory. In the former, theclaim that the defendant makes is ‘although I did it, I wasn’t reallymyself’. In the latter, the claim is ‘I did it but I couldn’t have doneotherwise. I had no real choice ‘.
In ‘The Gist of Excuses ‘ John Gardner argues that neither of the aboveclaims provides an adequate excuse to absolve the defendant fromliability or to mitigate the offence. Independently of the characterand capacity that she displays in her action, the character andcapacity of the agent plays no role in excusing the defendant fromliability for the act that she has performed. The first alternativeGardner calls the ‘Humean’ view. In that view, the gist of excusesruns as follows: an excuse will be available to the defendant to theextent that her action was no manifestation of her character. Thisview, Gardner thinks, is untenable. The actions of the defendantconstitute rather than evidence her character. Hence, the differencebetween the character displayed in the action and the character of theagent cannot be drawn. That the character of the agent at the time atwhich she performed the action (t) was different from her settledcharacter, that the action was ‘out of character’, may be a reason formercy. But it is no excuse.
The second alternative Gardner calls the ‘Kantian’ view. In thisview, the gist of excuses runs as follows: an excuse will be availableto the defendant insofar as she did all that was within her capacity todo to conform to the law. If the defendant could not have done more toconform her behaviour to the requirements of the criminal law, sheought to be excused. For the criminal law punishes us for the wrongfulchoices that we make and, in such cases, the defendant had no choice.Against this view, Gardner argues that the capacity that D has to actvirtuously at t is also no more and no less than the virtue that D hasat time t. And this is because one cannot have the capacity associatedwith a particular virtue whilst at the same time lacking the tendencyto be virtuous. Consequently, he continues, the standard apparently tobe applied to the agent ‘does reduce straightforwardly to the standardof purely predictive expectation, the standard of character which thosemaking the excuse already meet’.
Finally, Gardner argues, even if it is possible to draw a distinctionbetween the standards of character displayed in a particular action andthe capacity that the agent has to behave with better character thanthat, no good grounds for an excuse are provided. The reason, Gardnerthinks, is that one’s lack of capacity to behave with good characterprovides no excuse at all. To plead that no more can be expected of onebecause one possesses some character flaw is no excuse. To those thatattempt to claim such an excuse, the reply that is open to us is thatsuch an agent ought not to have had the character flaw that theiraction displayed; they ought to have lived up to the expectations thatwe have of those performing the particular role that they areperforming, be it friend, soldier, doctor or simply human being. This,for Gardner, provides the ‘gist of excuses’. The gist of excuses isthat, although the action was wrong, it was also one that came up tothe standard of reasonableness for the particular role that the agentwas playing. Hence, in contrast to his analysis of mens rea ,Gardnerthinks that excuses can be analysed under a single theory.
6. Necessity – An Alternative?
What is not clear is whether, in addition to duress, the EnglishCourts recognise a general justifying defence of necessity applying tosituations where, faced with a choice of two evils, a person commits anoffence to avoid the greater evil.
Consider the following incident reported at the inquest into thedeaths resulting from the Herald of Free Enterprise disaster. Passengers attempting to escape found their route to the safetyobstructed by a petrified young man incapable of moving. One of thepassengers pushed the man to his certain death. The passenger was notprosecuted for murder but, had he been, should he have been able totake advantage of a defence of compulsion? Duress would not have beenavailable to a charge of murder and one of the few authorities in thearea would suggest that the courts might be reluctant to acknowledge ageneral defence of necessity.
In Dudley and Stephens, the defendants had been adrift in a smallboat with very little food and water. After more than two weeks, theykilled the cabin boy and fed on his body until they were rescued. Theywere convicted of murder. Lord Coleridge rejected the plea ofnecessity.
The herald of Free Enterprise incident can be distinguished from thefacts of Dudley and Stephens. First, whereas in Dudley and Stephensthe appellants deliberately chose who was to be the victim, thiselement of choice was absent in the Herald case. Secondly, theimmobile passenger was endangering the lives of other passengers,whereas the cabin boy was not. Pushing the young man was the lesser oftwo evils and was, in the circumstances, justified. The passenger whopushed him out of the way was not morally blameworthy and it isarguable that the utilitarian objectives of punishment would not beserved by denying a defence in such a case. Thus, there are strongarguments for allowing a defence in these circumstances and it isarguable that it should be for the jury to determine whether the use ofdeadly force was justified in the circumstances by balancing the harmcaused against the evil averted.
Canadian criminal law recognises that the defence in thesecircumstances. In Perka et al v The Queen , the Supreme Court ofCanada held that necessity is an excuse where the situations ofemergency the harm inflicted by the defendant is less that the harmthreatened.
On a number of further occasions, however, the English courts haverefused to recognise a general defence of necessity. For example, LordDenning in Southwark London Borough v Williams expressed the view thathunger could never excuse theft and neither, in a civil context, couldhomelessness excuse trespass. He said:
“If homelessness was once admitted as a defence to trespass, noone’s house could be safe. Necessity would open a door which no mancould shut. It would not only be those in extreme need who wouldenter. There would be others would imagine they were in need, or wouldinvent a need, so as to gain entry”
And Edmund- Davies stated that:
“[T]he law regards with the deepest suspicion any remedies ofself-help, and permits those remedies to be resorted to only in veryspecial circumstances. The reason for such circumspection is clear-necessity can very easily become simply a mask for anarchy”
There are, on the other hand, a number of cases where the courts have,in effect, allowed a defence of necessity. One of the most celebratedis Bourne , in which a doctor performed an abortion on a girl. Thegirl had become pregnant as a result of rape. He was charged with theoffence of attempting to procure a miscarriage. MacNaghten J held thatan attempt was not unlawful if it was done in good faith for thepurpose of preserving the life of the mother and this might includeprotecting her from becoming a “physical or mental wreck”. In Newtonand Stungo Ashworth J directed the jury that an attempt to procure amiscarriage would not be unlawful if it was done in good faith topreserve the life or health of the woman.
There are, in addition, cases of “concealed necessity” where thecourts have in effect allowed a defence of compulsion by manipulatingone or other of the constituent elements of criminal liability. InAdams , for example, Devlin J held that a doctor is entitled to takemeasures to relieve the pain and suffering of a patient even if thosemeasures might shorten life. Provided the steps taken are, from aclinical perspective reasonable, they will not be regarded as a legalcause of death.
In Gillick v West Norfolk and Wishbech AHA , the House of Lords Heldthat a doctor who provides a girl under the age of 16 withcontraception does not aid and abet unlawful sexual intercourse unlesshe intends to encourage the commission of the offence. If the doctorprovides the advice and treatment because he believes it necessary forthe physical mental or emotional health of the girl, then he lacks thenecessary intent. This implies a very restricted meaning of theintention out of line with authority.
The conclusions reached by the courts in Adams and in Gillick couldhave been arrived at by openly developing the defence of necessity.That, it is submitted, would have been preferable to distortingorthodox principles of causation and intention.
A defence of necessity was recognised in F v West Berkshire HA. The House of Lords held that doctors were justified in carrying out asterilisation operation on a woman who lacked the mental capacity toconsent because there was a serious risk of her becoming pregnant whichwould have had grave psychiatric consequences for her. Lord Goffregarded the situation as falling within a general defence whichapplied where action is taken as a matter of necessity to assistanother person without his consent. Lord Goff’s formulation of thedefence is very limited; it would not have been available, for example,to the passengers on the Herald of Free Enterprise.
There is, however, some recognition of a broader based defence ofnecessity justifying intentional homicides in certain limitedcircumstances. In Re A (Children) (Conjoined Twins: Medical Treatment)(No 1) (2000), the issue facing the Court of Appeal was whether anoperation to separate two conjoined twins should proceed where theinevitable result would be that one of the twins would die. If anoperation were not performed, both twins were likely to die withinmonths.
Both Brooke LJ and Ward LJ took the view that the operation wasjustified as the lesser of two evils. Walker LJ based his decision onthe approach in Gillick, but was prepared to extend the defence ofnecessity to cover the case. Brooke LJ expressly stated that theseparation operation was lawful by reason of the operation of thedoctrine stated that the separation operation was lawful by reason ofthe operation of the doctrine of necessity. In his view, there werethere requirements for the application of the defence:
- the act was needed to avoid inevitable and irreparable evil;
- no more would be done that was reasonably necessary for the purpose to be achieved; and
- the evil inflicted was not disproportionate to the evil to be avoided.
He carefully considered the decision in Dudley and Stephens andidentified two objections, based upon policy, to allowing necessity asa defence for the sailors. The first objection was: who is to be thejudge of this sort of necessity? By what measure is the comparativevalue of lives o be measured? The second objection was that to permitsuch a defence would mark an absolute divorce of law from mortality.
Neither of these objections applied to the present case. The weakertwin was “self – designated for a very early death”; her life could notbe extended beyond a short spab and the moral issues of saving one lifeat the expense of another were finely balanced.
Ward L J, concerned that the decision could become authority for awider proposition than he intended, formulated the defence in narrowerterms reflecting the uniqueness of the case:
- it must be impossible to preserve the life of X without bringing death of Y;
- Y by his or her very continued existence will inevitably bring about the death of X within a very short period of time; and
- X is capable of living an independent life but Y is incapable
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