​KembaraXtra-Case Law-Abdul-Hussein and Others (1999) CA: Defence of Necessity in Hijacking Cases
​I. Case Background

• Defendants (Os): Shi'ite Muslim fugitives from Iraq.
• Situation in Sudan:
  • Overstayed residence permit.
  • Fear of Deportation: Back to Iraq, where they believed they would face execution.
• The Offence: Hijacked a plane bound for Jordan, using imitation knives and grenades to threaten the crew.
• Outcome of Hijacking: Plane landed at Stansted airport; after 8 hours of negotiation, passengers and crew were released, and Os surrendered.
• Charge: Hijacking.
• Defence Raised: Necessity.

II. Trial Judge's Ruling

• The defence of necessity was not left to the jury.
• Reasoning: The threat faced by the defendants was not sufficiently immediate.

III. Court of Appeal (CA) Decision

• Holding 1: Defence of Necessity SHOULD have been available.
  • Generally applicable to the offence of hijacking.
  • Balancing Act Required:
    • Terror induced in passengers.
    • Threat that the defendants were avoiding.
  • Key Element for Necessity:
    • Imminent Danger: Had to operate on the defendant's mind at the time of the offence.
    • Overbearing Will: The danger had to be such that it overbore the defendant's will.
    • Not Necessarily Immediate Execution: Defendant's mind must be so affected by the perceived danger that their will is overborne, even if direct execution isn't instantaneous.
• Holding 2: Urgent need for Codification.
  • The CA reiterated the call for urgent codification of the defence of necessity.
  • Purpose of Codification: To clearly define its precise requirements and parameters.

IV. Key Legal Principles Highlighted

• Defence of Necessity: A potential defence to criminal charges.
• Elements of Necessity (as interpreted by CA):
  • Threat of danger.
  • Necessity to act to avoid the danger.
  • The danger must be such that it overbears the defendant's will.
  • The danger's impact on the defendant's mind is crucial.
• Balancing of Interests: In cases like hijacking, the court must balance the harm caused by the offence against the harm being avoided.
• Codification: The importance of clear legal definitions for complex defences.