• In the case of Abdul Hussain [1999] Crim L.R. 570, it was held that in criminal cases, the defence of duress can only be raised where a defendant faces an imminent, but not necessarily immediate, threat.

Facts of the Case

  • D were all Shiite Muslims from Southern Iraq. All save one were fugitives for offending the laws or regulations of the Saddam Hussein regime.
  • In 1996, D were living in Sudan and feared they would be killed if they returned to Iraq. One had a permit to reside in the UK.
  • This member of D helped Iraqis to obtain false papers and to bribe officials and believed himself to be at risk of detection and deportation to Iraq.
  • D made several unsuccessful attempts to leave Sudan using false passports. By August all had overstayed and feared deportation.
  • D boarded an airbus bound for Jordan equipped with plastic knives and mustard bottles modified to look like hand grenades.
  • Once in Egyptian airspace, D gained control of the plane by threatening the crew. The plane landed at Stansted airport 12 hours later.
  • After 8 hours of negotiations, the crew and passengers were released, and D surrendered to the authorities.
  • At trial, D admitted to hijacking but contended that they did so as a last resort to escape death at the hands of the Iraqi authorities.
  • The trial judge did not leave the defence of duress to the jury because the threat was insufficiently close and immediate.
  • D were convicted and appealed on the grounds that the judge should have left the duress defence to the jury’s consideration.


  • To raise the defence of duress, did the threat need to be immediate and give rise to a ‘virtually spontaneous reaction to the physical risk?

Held by the Court of Appeal (Criminal Division)

  • Finding for D, that the defence of duress by threat or circumstances is available to all offences other than murder, attempted murder of treason. Imminent peril of death or serious injury must be in the mind of D at the time of the offence, but it does not need to be immediate.

Rose L.J.

  • The defence of duress is available to relation to hijacking aircraft, although the terror induced in innocent passengers will generally raise issues regarding the proportionality of their methods.
  • “That imminent peril of death or serious injury to the defendant or his dependants had to operate on the mind of the defendant at the time he committed the act so as to overbear his will, but the execution of the threat need not be immediately in prospect; that the period of time which elapsed between the inception of the peril and the defendant’s act was a relevant but not determinative factor” [570].
  • All the circumstances of the peril, including the number, identity and status of persons creating it, and any opportunities to avoid it, are relevant factors for consideration. In appropriate cases, the jury should assess whether the defendant’s mind was so affected as to overbear his will.
  • The judge interpreted the law too strictly in seeking a virtually spontaneous reaction. According to Martin [1989] 88 Cr.App.R. 345, he should have asked whether there was evidence of fear operating on D’s minds at the time of hijacking, and if there was any evidence that the danger objectively existed, and the hijacking was a reasonable and proportionate response to it.