Introduction
The defence of duress arises when a defendant commits a crime because they were coerced by another individual. Abdul-Hussain [1999] Crim LR 570 is a landmark case from the Court of Appeal that significantly clarified the requirement of immediacy concerning the threatened harm. This principle necessitates a close nexus between the threat issued and the criminal act performed under duress. The court established that the threat need not be immediate in the strictest sense, but rather, the threat must be operative on the defendant's mind at the time of the offence. Key considerations include the nature of the threat, the defendant's perception of the threat, and the time elapsed between the threat and the offence.
The Facts of Abdul-Hussain
Abdul-Hussain and other appellants hijacked a plane to escape perceived persecution in Iraq. They feared being forcibly returned to Iraq, where they believed they faced torture or execution. They argued that this fear constituted duress, compelling them to hijack the aircraft.
The Immediacy Requirement Before Abdul-Hussain
Prior to this case, the law surrounding the immediacy requirement was somewhat unclear. Cases such as Hudson and Taylor [1971] 2 QB 202 suggested a strict interpretation of immediacy, where the threat had to be virtually instantaneous. This presented difficulties in cases involving threats of future harm, even if the threat was credible and imminent.
The Court of Appeal’s Decision
The Court of Appeal in Abdul-Hussain broadened the interpretation of immediacy. The court recognized that a threat of future harm could be sufficient to constitute duress if it was operating on the defendant’s mind at the time of the offence. The critical question became whether the defendant had a reasonable opportunity to escape the threat without committing the crime. The court emphasized the subjective nature of this assessment, requiring consideration of the defendant's specific circumstances and perception of the threat.
The Significance of "Operative on the Defendant's Mind"
The phrase “operative on the defendant's mind” became central to understanding duress post-Abdul-Hussain. It highlighted the subjective element of duress, recognizing that individuals react differently to threats based on their personal circumstances. The court clarified that the threat does not need to be imminent in the sense of being about to happen immediately, but it must be present and actively influencing the defendant's decision-making process.
Subsequent Case Law and Clarification: Hasan
While Abdul-Hussain broadened the scope of duress, subsequent cases, notably R v Hasan [2005] UKHL 22, sought to refine and restrict its application. The House of Lords in Hasan re-emphasized the importance of immediacy, although not to the pre-Abdul-Hussain level of strictness. Hasan clarified that the threat must be imminent and unavoidable, and that the defendant must have no reasonable opportunity to escape the threat. The case also placed greater emphasis on the defendant's voluntary association with criminal activity, suggesting that this could negate the defence of duress.
Application of Abdul-Hussain in Practice
Consider a scenario where an individual is threatened with serious violence against their family unless they deliver a package containing illegal drugs the following week. Under the strict interpretation of immediacy preceding Abdul-Hussain, this might not have been sufficient to constitute duress. However, following Abdul-Hussain, if the threat is genuinely operative on the individual’s mind at the time of the delivery, and they have no reasonable opportunity to escape the threat, duress may be a viable defence.
The Objective Element of Duress: The Reasonable Person Test
Even if the threat is operative on the defendant's mind, the defence of duress also requires an objective element. The court must consider whether a person of reasonable firmness, sharing the defendant’s characteristics, would have reacted in the same way. This includes considering the defendant's age, sex, and any relevant medical conditions, but it does not typically include characteristics related to timidity or susceptibility to threats.
Conclusion
Abdul-Hussain [1999] Crim LR 570 represents an important development in the law of duress. The case clarified the immediacy requirement, shifting the focus from the temporal proximity of the threat to its impact on the defendant's mind. While subsequent cases like Hasan have refined the scope of the defence, Abdul-Hussain remains essential for understanding the subjective element present in duress. The "operative on the defendant's mind" principle allows courts to consider the psychological impact of threats, ensuring that the defence adequately protects those genuinely coerced into committing criminal acts. The ongoing judicial interpretation and application of these principles within the context of duress demonstrate the complex interaction between individual circumstances and legal requirements within the criminal justice system.
