LegalApproach said earlier "the test for the Court of Appeal was not whether there had been some irregularity in the trial but whether the convictions were unsafe as a result. The Court can decide that despite a misdirection the convictions are safe."

So why didn't they since the evidence was overwhelming?

According to the only proper law report I've been able to find, the Appeal Court judge said
In other words the trial judge told the jury that there had to be an actual threat for the defendants to argue duress. The Court of Appeal said this is wrong: it is a question of what the defendants honestly believed. The misdirection by the judge deprived the jury of the opportunity to consider the defence in the correct legal context. Since the Court of Appeal should not be in the business of second guessing what the jury might have done had they had the correct direction, the conviction was quashed. Since this was following a retrial the Court clearly thought it inappropriate for there to be a third retrial. The Crown has said they intend to appeal.

I imagine that the defendants argued that they only surrendered once they were satisfied that they were not going to be sent back to Afghanistan. Whilst they may have suspected that the Russians might have sent them back had they surrendered in Moscow, I'm unclear how they got round the point that they did not need to keep a full plane load of passengers hostage on a flight to Britain.

Had they released everyone at Moscow (except the considerable number of other passengers who also decided to take advantage of the situation and claim assylum in Britain!) then they would have at least been able to claim the moral high ground. Since behaviour under duress (in the legal sense) has to be proportionate, I don't understand why the Court of Appeal did not decide that despite the misdirection it would have made no difference to the jury's verdict, on the basis that keeping that number of people hostage for that long is on any view of the law disproportionate to the duress they were under.

I sometimes do get the feeling that in the Court of Appeal the facts are not always allowed to get in the way of a good legal argument!

Alot of these problems would be solved if criminal defences were codified in an Act of Parliament as opposed to being left to the common law and the decisions of the higher courts to clarify them. Of course the government is far too preoccupied with forcing through good 'sound bite' political legislation to do something sensible like this.

Yes, the defendants were extremely lucky, though in fact most of them were very lucky with the original sentences, which resulted in all but two of them having been released before the appeal decision. All in all this decision and the whole trial process does not show the English Criminal Justice system in a good light.

Have these (rather insanely liberal) judges been appointed by the Blair government?

If so, I find it quite ironic - that while the Blair government proclaims its toughness on crime at every opportunity, its judges seem to take perverse pleasure in doing just the opposite!

P'raps judges should be given yearly (mandatory) sanity tests.: E

Judges are appointed by the queen on the advice of the Lord Chancellor (who has just been abolished, so we will now have an independant appointments commission).

It is considered bad form in civilised countries for judges to be considered 'the governments' judges'! That tends to happen in rather less savoury countries where presidents rule for life and appoint and dismiss judges whenever they feel like it - no names mentioned.

Things could be a lot worse.

I as one who have voiced complaints about the Justice system in Britain, and feel that some of the recent judgements are lenient bordering on idiocy will still admit that I feel that the system is a good one as systems go. There are indeed plenty that are very much worse and I do give thanks for the system we have. That it appears to err on the side of caution and leniency I may well have cause to rejoice about some fine day?? With my luck though I will probably get a Judge Jeffries.

Heliport,

I don't wish to sound pompous (well not on my own time anyway) but you state that the evidence was overwhelming yet a first jury failed to agree and the subsequent convictions arose after a re-trial and a flawed direction from the judge. The trial(s) each lasted a number of weeks and unless you are present during a trial and hear all of the evidence it is impossible to saay what the strength of the evidence is. I have read newspaper reports of cases I have been in and heard media broadcasts and sometimes the report bears little resemblence to what I recall of the days proceedings as a whole. Of course this can appear very flattering when one get's someone off against a seemingly overwhelming prosecution case. Problem is that Journo's tend to report the prosecution opening and very little else of the meat of the case. It's worth remembering that a 30 second daily newsreport represents up to 5 hours worth of live evidence. Of course, again it's very flattering when prosecuting as one's mum, spouse, friends etc see lots of newsprint with "Mr Legalapproach for the Crown, in opening said........ Mr Legalapproach told the jury........ Mr Legalapproach went on to say....... The case continues"

The trial judge dealt with the case on the basis that there was little question but that they were justified in the initial hijack but that the continuation beyond Moscow was questionable. Personally (and the Moscow theatre siege might support this) Moscow would not necessarily be my ultimate destination of choice and the Russians have a robust attitude towards dealing with such situations. Might have been mutually beneficial for them to leave asap - not quite an FR turn around but it was not significantly far short. The defendants were sentenced as from Moscow onwards hence the significantly shorter sentences than they (and everyone else) were expecting.

The conspiracy theorists amongst you might be interested to know that one Afghan occupant of the aircraft was never charged with the hi-jacking despite strong evidence that he was heavily involved. By co-incidence he just happened to have been a fairly senior chap who had been a former advisor (or certainly involved with) the Russian military during their occupation of the country. Never charged, never tried, never deprted and currently living happily in the U.K. in a des res provided by HMG. As I say, must have been pure co-incidence that he just happened to have been on the flight.

They certainly live happily ever after! I have a house which was let through a government agency via the FO to asylum seekers. Since they terminted the contract, I have been averaging about a thousand pounds a week in motoring fines. That's without the unpaid bills. One of them is being sued over an accident without insurance.
Best of it these offences are all in London N19 or thereabouts, and the house was in the Midlands.

Hijacking
 

There can always be an excuse for hijacking (valid excuse from the hijacker's point of view and an invalid one from the pilot's). Arrested hijackers have always claimed political victimisation or personal problems as root causes for their actions. Notwithstanding any reason, however genuine it may seem, hijacking remains an unlawful act and cannot be condoned, specially to serve as a deterrent for would-be hijackers.