R v Abdul-Hussain [1999] Crim LR 570

Facts

• Abdul-Hussain and other appellants hijacked an aircraft to escape persecution in Iraq.
• They feared being returned to Iraq, where they believed they faced torture or execution.
• The appellants claimed that these fears compelled them to commit the hijacking under duress.

Issues

1. Whether the requirement of immediacy in the threat for the defence of duress was met in the circumstances of the case.
2. Whether the subjective perception of threat by the defendants should be considered when assessing duress.
3. Whether the threat must be virtually instantaneous or can be of future harm if operative on the defendant's mind.

Decision

• The Court of Appeal held that the immediacy requirement for duress does not necessitate that the threat be strictly instantaneous.
• It was determined that a threat of future harm could constitute duress if it was actively influencing the defendant at the time of the offence.
• The critical consideration is whether the defendant had a reasonable opportunity to escape the threat without committing the crime.
• The court emphasized a subjective assessment of the threat as experienced by the defendant.

Legal Principles

• The threatened harm for duress must be “operative on the defendant’s mind” at the time of the offence, reflecting a subjective approach.
• A strict requirement that the threat be immediate in the sense of “about to happen” was relaxed; the threat must instead be present and active in the defendant’s mind.
• The defence of duress also requires that a person of reasonable firmness, sharing the defendant’s characteristics, would have acted in the same way.
• Subsequent case law, such as R v Hasan [2005] UKHL 22, has refined and partially restricted the application of this principle, emphasizing both the imminence of the threat and whether the defendant had a reasonable opportunity to escape.

Conclusion

R v Abdul-Hussain [1999] Crim LR 570 established that the requirement for immediacy in threats supporting a defence of duress means the threat must be actively operative on the defendant at the relevant time, not necessarily immediate in the strictest temporal sense. This case marked a significant shift from a rigid to a more flexible, subjective evaluation of threats in duress, subject to later refinements in case law.