Self-defence and the issue of reasonable force

The recent case of Munir Hussain who was sent to prison for inflicting violent vengeance on a particularly vicious burglar has reopened the debate on whether the law on self defence strikes the right balance?

Before we consider these latest outbursts by the political parties at such an outrage we should remind ourselves briefly about the law. 

The law of self-defence embraces not only acts which are needed to defend oneself from attack, but has been supplemented by statutory law to cover actions taken to defend another or to prevent crime.  The statutory provisions can be found in Section 3 (1) of the Criminal law Act 1967 which provides that:

" A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." 

Section 76 of the Criminal Justice and Immigration Act 2008 now codifies the law.

Can the defence of self-defence be raised as a defence to any crime?  Yes it can be a defence to any crime, including murder.  The essence of the defence is that the defendant is justifying the use of force.

The defence involves the concept of reasonableness and commensurate force.  The force used to defend oneself or another must be reasonable in all the circumstances.  The law allows the victim to use force but the force must not be excessive.  If excessive force is used then the defence will fail and this includes the use of force after any danger from the assailant has ceased.  In such situations the defence is not available and this touches upon the particular circumstances in which Munir Hussain pursued and attacked his assailant.

So what do the political parties say?

Chris Grayling, shadow home secretary for the conservatives, says he wants to tear up the reasonable force test and argues that such a test restricts self-defence.

Chris Grayling has been reported as saying that the Conservatives would make it harder for people who tackle burglars to be prosecuted.

Mr Grayling wants to change the law so that people are only prosecuted in cases where their actions are judged to have been "grossly disproportionate".

The debate has been triggered following the conviction of Munir Hussain, who was jailed for beating a burglar who tied up his family in their home.

The Home Secretary, Alan Johnson, on the other hand, is reported as saying that the law has been strengthened to protect the householder against intrusion and seems to agree with the way in which the trial judge took issue with Hussain over the matter of whether the attack was proportionate. He has, however, hinted that the law may be reviewed again to ensure that it protects the householder.

The Liberal Democrats seem to take yet a different view and do not think that the law needs to be changed.  Charles Kennedy, the Former Liberal Democrat leader, has said that he did not believe the law needed to be changed, adding "My own personal feeling is that it is best left to the courts. I think there is sufficient discretion in the existing legislation for the courts to judge each case on its individual circumstances. But there is no doubt that there is a considerable public head of steam about this."

So what were the circumstances surrounding the attack?

Walid Salem, a criminal with more than 50 convictions, was handed a two-year supervision order for his role in the break-in.

Walid Salem was one of three men who ambushed Mr Hussain, his wife and children as they returned to their home in High Wycombe, Bucks, in September 2008.  They had been attending Ramadan prayers at their local mosque.

Their hands were tied behind their backs. As a result they were forced to crawl from room to room before being made to lie down in the living room.

Mr Hussain’s teenage son managed to escape and raise the alarm.  Mr Hussain seized his chance and turned on his captors.

While two of them got away, Salem was cornered in a neighbour’s front garden.  Helped by his brother, Tokeer, 35, who lived nearby, Hussain set upon him with a metal pole and a cricket bat.

Apparently he was struck so hard that the bat broke and he suffered a fractured skull. He was later deemed not fit to plead to charges of false imprisonment and given a supervision order.

Munir Hussain and his brother Tokeer Hussain were found guilty of causing grievous bodily harm with intent. 

We will leave the last word to the trial judge, Judge John Reddihough.  He told the brothers it was his “public duty” to jail Munir Hussain for 30 months and his brother for 39 months.

"It may be that some members of the public, or media commentators, will assert that the man Salem deserved what happened to him ... and that you should not have been prosecuted and need not be punished,” he said.

"However, if persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting justice take its course, then the rule of law and our system of criminal justice, which are the hallmarks of a civilised society, would collapse."

He said it was necessary to “make it absolutely clear that, whatever the circumstances, persons cannot take the law into their own hands, or carry out revenge attacks upon a person who has offended them”.

I will be surprised if this is the last word!

 

 

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