Abdul-Hussain, R. v

Facts

The defendants were Shiite Muslims who had fled Iraq and reached Sudan. They feared that they would be deported from Sudan to Iraq, where they believed they would be tortured or killed. To escape, they hijacked an aircraft in Sudan and had it flown to the United Kingdom, where it landed at Stansted.

History

The defendants were convicted of hijacking contrary to the Aviation Security Act 1982 after the trial judge ruled that duress of circumstances could not go to the jury, taking the view that the threat they feared was not imminent. They appealed to the Court of Appeal.

Issue

Whether duress of circumstances is available in answer to a charge of hijacking, and whether the requirement that the peril be imminent means that it must be immediate or about to occur.

Held

The appeal was allowed and the convictions were quashed. Duress of circumstances was in law available, and imminence was to be treated as a matter of degree to be decided by the jury, and not as requiring that the threat be literally immediate.

Ratio

• Duress of circumstances applies where a defendant commits an offence because of a reasonable fear that death or serious injury will result if he does not act, and it is not excluded by the grave nature of the offence of hijacking.
• The peril must be imminent in the sense of operating on the defendant's mind at the time of the act, but need not be about to occur immediately; there must be no reasonable opportunity to avoid the peril, and the response must be proportionate to it.

The judgments

Key reasoning

• The principles applying to duress by threats were applied to duress of circumstances, which should be governed by the same requirements of reasonable belief, a good reason to act and proportionality.
• The immediacy of the threat is relevant to whether the defendant had a reasonable opportunity to escape, and the longer the delay between threat and action, the less likely the defence is to be available, but there is no rule that the peril must be strictly immediate.

Where it fits in the module

The case is central to the treatment of duress and necessity within the general defences. It shows the courts treating duress of circumstances as the same in principle as duress by threats, and raises the question whether that justifies a defence to the most serious offences of violence short of murder. It also invites debate on the role of imminence and on the fairness of requiring a defendant to have sought asylum or help before breaking the law.

Criticisms

• Relaxing the imminence requirement means that the defence depends on a jury judgement about whether alternatives were available, which risks inconsistent results for similar threats.
• Allowing a defence to a hijacking that endangered the lives of passengers raises the question whether any ground of excuse can outweigh the harm to innocent third parties.
• The decision treats duress of circumstances as a single excusing defence, although in some cases it operates more like a justification, and does not examine that difference.