#crime #defences #law

[ case ]
FACTS: A-H, a Shiite Muslim from Southern Iraq, was a refugee living in Sudan, where he helped fellow refugees leave Sudan by forging passports and bribing officials. He had tried to leave Sudan himself on a number of occasions but had been unable to do so. His permit to stay in Sudan had expired and he feared that he would be deported to Iraq, where he would be executed. He and others boarded a flight from Sudan. Once in Egyptian airspace, they hijacked the aeroplane and demanded to go to London. The aeroplane landed at Stansted Airport. A-H was charged with hijacking and pleaded the defence of duress of circumstances. The trial judge refused to put the defence to the jury because A-H had not made the decision to hijack the aircraft out of a fear of 'immediate' death or serious personal harm. A-H was convicted.
HELD: The Court of Appeal quashed his conviction holding that: (1) duress of circumstances could be a defence to a charge of hijacking, although in such cases, the terror-induced innocent passengers would generally raise issues of proportionality in determining whether a reasonable man would have done what the hijacker did; (2) the defence was not limited to where the accused had committed a crime as a 'virtually spontaneous reaction' to a threat of death or serious harm as the trial judge had suggested; and (3) the defence was available where the threat of death or serious harm was 'imminent' even though it was not 'immediate'. The court held that the period of time between the perceived peril and the accused's act was a relevant factor for the jury to bear in mind when considering the proportionality of the accused's act but was not determinative. The jury had to ask themselves whether the threat was so imminent to the accused's act that it overbore his will. When considering this, the jury would also have to consider the number, identity, and status of those making the threat and the opportunities (if any) the accused had of avoiding the threat.

'If Anne Frank had stolen a car to escape from Amsterdam and been charged with theft, the tenets of English law would not, in our judgment, have denied her a defence of duress of circumstances, on the grounds that she should have waited for the Gestapo's knock on the door.' (Per Rose LJ.)

If the jury had been properly directed it is unlikely it would have allowed the defence. Dennis J Baker points out that these men landed safely in Cyprus and could have sought refuge there, but instead took women and children on a further flight to England. He questions their motives for doing so when there was no need for them to fly any further than Cyprus, especially as Cyprus is a safe country that has been a signatory to the Convention Relating to the Status of Refugees (Geneva, 28 July 1951) since 1963.

R v Abdul-Hussain [1999] Crim LR 570 (CA)