Practice and Procedure

R v S & ORS (2003)

PUBLISHED June 6, 2003

The defence of duress could be invoked by a defendant who reasonably believed that he was subject to an imminent threat of death or serious injury and the defendant did not have to show that there was in fact a threat.Appeal against conviction by the hi-jackers of an Afghan aircraft in February 2000. The aircraft was taken to Tashkent, Kazakstan, Moscow and then Stansted Airport. It landed at Stansted at 2am on 7 February 2000 and the hi-jackers surrendered to the British authorities on 10 February of that year. The appellants were charged with hi-jacking, false imprisonment of the crew and passengers, and possessing firearms and explosives. The appellants' defence was one of duress on the basis that they had no other way of escaping death or serious injury from the Taliban regime in Afghanistan. They claimed that their actions after landing at Moscow and Stansted continued to be the result of duress because there was an imminent threat of the storming of the plane and the return of the appellants to Afghanistan directly or via Pakistan. The Crown maintained that the evidence showed that the hi-jackers had not acted under duress. None of the hi-jackers' demands, except the demand for asylum, related to an imminent threat. Therefore, the passengers could have been released on arrival. At trial Sir Edwin Jowitt ruled that for a defence of duress to arise there had to be evidence that there was in fact or may in fact have been an imminent peril and that it was not sufficient if the defendants merely believed that such threats or circumstances existed. The hi-jackers were convicted and appealed on the basis that ruling and the direction to the jury were wrong.HELD: (1) The judge was wrong to hold that there must be a threat in fact, rather than something the defendant reasonably believed to be a threat, before the defence of duress could be invoked. (2) The suggested direction in R v Graham (1982) 1 WLR 294 continued to be the law and that required the defendants' conduct to be judged by their reasonable belief in relation to the words or conduct said to constitute the threat for the purposes of the defence of duress. Graham (supra) was approved in R v Howe (1987) AC 417. (3) That formulation was consistent with the law relating to provocation since it was accepted that a defendant relying on provocation was entitled to be judged on the facts as he believed them to be. (4) There was a misdirection in this case, which was crucial; thus the convictions were not safe. (5) The Court of Appeal certified the following question for the House of Lords under s.33 Criminal Appeal Act 1968: "may a defendant seek to rely on a defence of duress where he may reasonably/genuinely believe that he is subject to a threat of death or serious injury where there is no evidence of a threat of death or serious injury giving rise to the defence."Appeal allowed.

[2003] EWCA Crim 1809