A lot of the talk about the release of Munir Hussain, the law of self-defence and the functioning of the courts this week has missed several points. Why, people ask, didn’t the judges take account of the anguish Hussain was in following the attack on his family? Why does the law not allow you to do what you feel is needed to defend yourself? If the Court of Appeal could free Hussain this week, people ask, why didn’t the original judge do so in the first place? And doesn’t this all go to show we have to “clarify” the law to redress the balance in favour of householders?
When I wrote about the case just before Christmas (or rather, in my defence, about Chris Grayling’s misconceived policy proposals triggered by publicity about the case) A Basu drew attention to the transcript of the judge’s sentencing, which makes interesting reading. Judge John Reddihough made clear the case was not about self-defence
The prosecution rightly made it plain that there was no allegation against you, Munir Hussain, in respect of the force you used against Salem in defending your own home and family or of the force used by either of you in apprehending Salem.
in fact, Munor Hussain never even pleaded self-defence
Of course, it is to be noted that it was never suggested by you or on your behalf in the trial that there was any justification for the attack upon Salem. You simply claimed that you were not involved in it.
So the jury never actually had to decide whether the force he used was reasonable. The issue for them seems to have been one of identification: whether or not he was there. This is yet one more illustration of the fact that reporting of criminal cases is often misleading and it is unfair to fulminate against out-of-touch judges without knowing the full details.
Then we get to the meat of the sentencing decision:
The sentencing guidelines for this offence, the maximum sentence for which is life imprisonment, indicate that usually when such serious injuries result from such an offence, a very long sentence of imprisonment of seven years or more should be imposed after a trial. Whilst I must have regard for those guidelines, I also have to have in mind the particular and unusual circumstances of this case and all the mitigating factors. I have had regard, too, to relevant reported Court of Appeal cases, including R v Smith (2009), R v Fazal (2005), R v Lindley (2009) and A-G Reference 83 of 2001. Immediately before you both committed this offence, Munir Hussain and his family had been the victims in their own home of a very serious and frightening criminal offence. In my judgement, there was a high degree of provocation which led to this offence being committed and to you both acting out of character…
The prison sentences I pass upon you are very significantly shorter than would have otherwise been imposed by reason of the degree of provocation involved and the other strong mitigating factors to which I have referred.
So the judge did take provocation into account. The reference to the sentencing guidelines is also interesting. They make clear that 3 years is the very bottom of the sentencing range for the offence Munir Hussain committed (page 13 of the pdf). The judge arguably went beyond that, reducing the sentence further because of provocation even though the guidelines don’t point that way. They say provocation should be taken into account (see para. 31 of the pdf)
when sentencing an offender who claims to have been provoked into committing an offence against the person
which was not the case here: Munir Hussain claimed not to have been there at all. So the judge, who was legally obliged to take account of the guidelines under section 172 of the Criminal Justice Act 2003 went as far as he reasonably could in Hussain’s favour, even bending the guidelines to achieve leniency.
Why, though, did he not suspend the sentence, as the Court of Appeal did? The reason is that he couldn’t. Section 189 of the same Criminal Justice Act 2003 provides that imprisonment can only be suspended if ordered for less than a year ( to be precise, I think 51 weeks has been amended to 12 months, but I can’t track down the amending provision). You can see, if you look at the guidelines closely, why the judge felt unable to drive the sentence down quite that low. The Court of Appeal (I’ve not seen the judgment yet) clearly felt able to go further, and reduce the sentence to twelve months – at which point the option to suspend became available.
Why are the sentencing guidelines there? Because politicians want to ensure consistency in sentencing, believing (perhaps with some justification – I’m not against the guidelines) that judges cannot safely be allowed too much discretion. Why is section 189 there? because politicians wanted to stop judges from suspending prison sentences for offenders like Munir Hussain. Presumably because they thought judges were being too lenient and needed to be made more firm.
If there’s a problem here, the answer is not more meddling by politicians, straitjacketing the judges trying to do justice in the individual cases before them, whose multifarious variety well exceeds the imaginations of MPs and the surely and how come merchants in the press who egg them on to unwise action.
An excellent piece. It makes me actually angry to find out that the details of the case are so different to what the MSM have reported. This article deserves to be widely read.
thank you for the facts. i had no idea it had been a not guilty plea on the grounds ‘i never done it’. i wonder whether any mention was made of that fact when sentencing; and what impact being disbelieved on oath has on an appeal (not at all, i assume as opposed to any trial for a subsequent offence). the media have been unanimous in their tagging of hussain as a ‘father’ or a ‘businessman’. the victim of his attack was only ever a ‘burglar’. go on – feel sympathy for him, we dare you. it struck me as significant (as i noted at charon’s) that paul stephenson chose that day to go on record saying we should regard those who ‘have a go’ as heroes. it seems the press had already decided that for themsleves. and for us.
.-= simply wondered´s last blog ..self-serving scum =-.
perhaps he really wasn’t there, perhaps it wasn’t him.
I will leave aside “self defence” etc. apart from mentioning that the Criminal Justice and Immigration Act 2008 has already “recalibrated” the law to some extent though the precise extent is debatable.
We cannot trust the media to accurately report court proceedings. This is why we urgently need the publication – (maybe via a website) – of all sentencing remarks. This would be amost useful innovation. [The Supreme Court is leading the way with its website]. Looked on bailii this morning and the Hussain judgment does not seem to be there. Again, why not? The case is obviously high profile given the media attention it received when the Hussain’s were sentenced.
I am with you on the matter of sentencing guidelines. Under the Criminal Justice Act 2004 s.172 the court must “have regard” to sentencing guidelines but it is permissible to depart from them provided reasons are stated (s174), Unfortunately, having ignored pleas to leave this alone, the government have put into the Coroners and Justice Act 2009 a stronger “must follow” requirement.
s125 – Every court— (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,unless the court is satisfied that it would be contrary to the interests of justice to do so.
This section needs to be read in connecti0n with other sections which enable monitoring of compliance with guidelines.
Another point flowing from the Hussain case is that the career criminal Salem received a supervision order. He was unfit to plead. The powers of courts in these instances might merit a review. The public do need strong protection from people like that and being unfit to plead must not be allowed to amount to a licence to commit crime.
‘perhaps he really wasn’t there, perhaps it wasn’t him.’
perhaps he wasn’t, but the jury believed he was.
.-= simply wondered´s last blog ..self-serving scum =-.
I agree with the above comments – a very useful analysis and I too had no idea that Mr Hussain’s defence was based on identification. I would be interested in learning why he chose to pursue that defence (or was advised to do so). Perhaps if he had pleaded guilty and relied upon self-defence in mitigation at the trial the judge might have felt it possible to reduce the sentence to 12 months and thus allow suspension?
Leaving this case aside, isn’t it time that the mandatory life sentence for murder was revoked?
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I am not an academic, nor am I a criminal law expert; my perspective can only best be described as the mediocre vista of a bumbling pragmatist, but to my mind, the media’s concern must have been in relation to any human being defending themselves where their life and the lives of those they love are being threatened, resulting in a criminal sentence.
There was a time in English Law where a man’s home was his castle and he had the right to defend it. The fuss being made about feeling sorry for Mr Salem is a fuss I don’t understand. Yes, he may have been desperate, he may have been on drugs, he may have been a risk junky or he may have been none of these things, but as the law stands it is hardly a deterrent to would be assailants considering breaking and entering and possible use of violence to achieve their aim.
It seems too that it is not just the media making assumptions. What would any one of us do in a scenario like that? Would we have the ability to measure reasonable force, with our hearts pounding and the fear of the perceived imminent loss of our loved one’s lives or our own? I don’t think that even if I plucked up the courage to strike or hit, that I would even begin to know what was reasonable in that moment.
Surely, if all the judges were considering was whether Mr Hussein was indeed present, then he would not have been convicted of an offence. It seems the use of force was a relevant factor, because ultimately, that force was being judged. In order to judge that force therefore, as I understand it, someone had to be held responsible. And so, Mr Hussein, defending his family with another relative were both held responsible for using force; a force they used, not to defend lamps or watches but to preserve the lives of those they loved.
Criminal law, for me, is about protecting the vulnerable, wherever they may be, at any given time and within reason. It serves to send out messages, designed to deter people from preying on the vulnerable and so to my mind the current law on this seems strange; it seems short-sighted.
I don’t believe the judges reduced the sentence because they felt pressure from the media to do so. I think judges have more backbone than that and they do what they feel is right when presented with the evidence. I believe the judges altered the sentence because they took into account one crucial factor: the message our current system sends out today is, commit a crime and the victim will do the time.
And surely, that has to be wrong.
As far as I can tell it wasn’t pleaded as self-defence because it wasn’t an act of self-defence. It was retribution. The sentence was reduced substantially given the extreme provocation that occurred. This isn’t “short-sighted”. At the time of the offence the Husseins were no longer in danger, and knew it. The vulnerable person was the man on the ground having his brains smashed in with a cricket bat and metal pole. The short-termist view is the one that thinks that is legitimate and forgets why we got rid of the sentence of outlawry.
“It seems too that it is not just the media making assumptions. What would any one of us do in a scenario like that? Would we have the ability to measure reasonable force, with our hearts pounding and the fear of the perceived imminent loss of our loved one’s lives or our own? I don’t think that even if I plucked up the courage to strike or hit, that I would even begin to know what was reasonable in that moment.”
If the media had done their job properly they’d have informed you that the test is, broadly speaking, that you are judged on what you genuinely (even if mistakenly) believed you needed to do at that time. The court will take into account that in the heat of the moment you’re not going to be able to gauge things perfectly. This is ultimately something decided by a jury, so blaming “the system” is somewhat disingenuous when it’s essentially private citizens that choose where to draw the line.
The message of “commit the crime, the victim will do the time” is one sent out by the media, and bears little resemblance to what actually goes on in a crown court.
Dear Benjamin,
Thank you for your reply. I understand your generous explanation on the points relating to retribution and ultimately, reasonable force and I appreciate your effort to explain things so elegantly; it was very kind of you.
I agree with you that victims of crime should not be entitled to a free-for-all when it comes to retribution, but I suppose I also feel that motivations for one’s actions are not always so cut and dry. Mr Hussain may have taken the view that Mr Salem would return to murder his family if he let him get away. There appears to be some evidence of that in the reports of Mr Hussain’s testimony. I remember also somewhere in the recesses of my memory banks some criminal law case I read at law school which explained that when a person is running away from you after committing an assault on your person, to follow after and attack would no longer be considered self defence and therefore immediately removes you from mitigation of any further violence.
My query really, is with that particular assumption; that immediate danger being given more weight than say, a future threat, which on the face of it, is very reasonable and logical but seems to suffer a little in this kind of context.
I don’t agree that the media have created a fictitious view of using force by a victim. I think what bothers me and probably what bothers the media (and I hasten to add, that the media’s sensationalism is a bore in the main) is that someone can come into our homes, threaten our lives and the lives of our family members and then should the worst happen and retaliation occur, this is somehow viewed as un-acceptable unless that threat is understandable in only the most basic of interpretations.
To my mind at least, the threat of murdering family members may well render most people with the desire to put a stop to that threat, whether immediately present or not and in that moment, perhaps Mr Hussain saw the chance to at least arrest that threat.
.-= Natasha Phillips´s last blog ..Petition, Petition, Petition =-.
PS I find all of this rather ironic of course, in light of the Iraq Inquiry.
.-= Natasha Phillips´s last blog ..Petition, Petition, Petition =-.
The problem is where you draw the line with future threats. The courts are willing to take a liberal definition of “immediate” violence (R v Ireland, Burstow). Beyond protection from such an immediate return of the burglar, the courts have to hold that any other acts of violence are unlawful. To do otherwise would be to suggest that crime prevention shouldn’t be handled by the police. Self-defence is about having no alternative (notwithstanding that there is no obligation to retreat). If you are able to call the police, then you should do so.
Retaliation, in the sense of retribution rather than necessary force, cannot be lawful. The implication otherwise is that extrajudicial punishment is acceptable. Once we go down that route, we undermine the rule of law.
.-= Benjamin Gray´s last blog ..The Slippery Slope =-.
Thought it might be worth putting up a link to the joint CPS-ACPO statement “Householders and the use of force against intruders”:
http://www.cps.gov.uk/publications/prosecution/householders.html
.-= Benjamin Gray´s last blog ..The Slippery Slope =-.