Defence of duress - no threshold requirement of actual threat before defendant entitled to raise defence - belief of threat sufficient

R v Safi and others: CA (Lord Justice Longmore, Mr Justice Hooper and Mrs Justice Cox): 6 June 2003

The defendants were charged with offences including the hijacking of an aeroplane, which had departed from Afghanistan.

The defendants claimed that they acted under duress, being opponents of the Taliban regime, which was in power at the relevant time.

At a first trial, the jury had not been able to agree; but the defendants were convicted at a retrial.

The respective judges had directed the juries in different terms as to the defence of duress, the judge at the now-appealed retrial holding that there must in fact have been a threat for a defendant to be entitled to raise the defence.

The defendants appealed on the ground that the judge had erred in so finding, and in his directions to the jury as to duress.

Joel Bennathan (assigned by the Registrar of Criminal Appeals) for Ali Ahmed Safi; Michel Massih QC and Mark Summers (assigned by the Registrar of Criminal Appeals) for the remaining defendants; Bruce Houlder QC and Aftab Jafferjee (instructed by the Crown Prosecution Service, Ludgate Hill) for the Crown.

Held, in reasons reserved on allowing the appeal, that the judge had misdirected the jury as to duress where a review of the authorities, including R v Graham [1982] 1 WLR 294, CA, confirmed that it was not a prerequisite to raising the defence that there must in fact have been a threat; that where it was accepted that duress applied to hijacking cases, the defence must apply to the same extent as analogous cases, such as provocation and self-defence, so that a defendant was entitled to rely on the facts as he believed them to be.