Tough on crime, tough on politicians sucking up to the Daily Mail on crime
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Dear Chris Grayling,
You certainly won yourself a few fans among Daily Mail readers yesterday with your pledge to ‘protect’ householders who defend themselves from burglars. Your plan is to review legislation on householders’ rights in the event of a burglar breaking into a home, following a recent case that left many Daily Mail readers angry. Unfortunately, pandering to one particular group of newspaper readers is entirely inappropriate in this instance.
Your comments to the Telegraph are very instructive: ”At the moment the law allows a defendant to use ‘reasonable force’ to protect him or herself, their family or their property. Conservatives argue that the defence that the law offers a householder should be much clearer, and that prosecutions and convictions should only happen in cases where courts judge the actions involved to be ‘grossly disproportionate’.” These remarks follow the case of Buckinghamshire businessman Munir Hussain, who was last week jailed for 30 months after pursuing and beating a member of a gang who had tied up his family at knife-point in their home. Hussain was convicted last week of causing grievous bodily harm with intent. Judge John Reddihough noted Hussain’s ‘courage’ but said that he carried out a ‘dreadful, violent attack’ on the intruder as he lay defenceless.
In response to the case, Home Secretary Alan Johnson said he instinctively felt ‘uncomfortable’ about the jailing of Mr Hussain and that he was sure Justice Secretary Jack Straw would want to look again at the law in light of public concern. Even so, Johnson insisted that judges had adequate discretion to decide whether the force used by householders was ‘proportionate’, and it was not for politicians to ’second guess’ them. It is also worth remembering that this is not a new issue. Two attempts by Conservative backbenchers to change the law to allow any force that is not ‘grossly disproportionate’ failed in the Commons in 2004 and 2005. Moreover, in response to public concern, Jack Straw issued a clarification last year. He said that people would be protected legally if they defended themselves ‘instinctively’, they feared for their own safety or that of others, and the level of force used was not excessive or disproportionate, but apparently he was criticised for doing no more than restate the existing legal position. On this basis, there are essentially two issues at stake here: was Munir Hussain’s conviction correct, and does the law need to change?
On the issue of Hussain’s conviction, there is no doubt that he deserved to be jailed. Munir Hussain was told he would be killed when three raiders invaded his home. He and his wife, their teenage daughter and two sons were ordered to lie on the floor of the living room with their hands behind their backs, but the Hussains’ teenage son managed to escape through a window and when the men realised this, two of them fled. Hussain then threw a coffee table at the third man, 56-year-old Walid Salem, hitting him in the face. At this point, there is still a reasonable argument to say that Hussain was acting in self-defence and trying to protect their family, and the law should always recognise this. However, his older son joined the fight and although Salem tried to escape he was bundled into a nearby garden after being chased down the street. The Hussain’s neighbours then saw several men beating Salem with weapons including a cricket bat and a metal pole. He was left with injuries including a fractured skull and bruising on the brain, and the cricket bat was split into three pieces, such was the degree of force used. Hussain denied attacking Salem in court, claiming it was a group of local youths, but was still convicted. The fact is that Hussain was not protecting his family – he was enacting revenge, and although I cannot imagine what it must be like in the heat of the moment when you perceive your family to be at risk, the law should never tolerate such behaviour. He was jailed for 30 months and will presumably be let out early, but the jail sentence must stand.
The second issue revolves around whether the current law is adequate, as it allows people to defend themselves instinctively and use force within reason. What astonishes me is that you want to legalise the use of ‘disproportionate’ force, which sounds like a very dangerous game to play. Surely, by definition, the use of ‘disproportionate’ force is unnecessary in any context, and I also see a legal minefield appearing when distinguishing between ‘disproportionate’ and ‘grossly disproportionate’. In effect, you want it to be legal for people to use more force than is necessary to protect themselves, their family and their property. This hardly smacks of clarity. In Ireland, they have introduced laws that allow a burglar to be killed if someone is defending their family or their property, which also treads a very fine line. Let us remember that killing someone is a long way away from threatening to kill someone if they do not leave your property. I have no problem with ‘violent resistance’ in the sense that you are allowed to approach an intruder while holding a weapon or fight back if you are in danger, but to encourage homeowners to start actively pursuing burglars is going to lead to travesties – particularly homeowners dying in fights with criminals.
You refused to comment on the case of Mr Hussain because it is going to appeal, but still suggested that ”it raises genuine concerns around the country [as] it reinforces the sense that the law doesn’t work on behalf of the householder.” To use Hussain as an example of when the law went wrong is totally incorrect as Hussain clearly overstepped the mark in any civilised society, and this stinks of Daily Mail opportunism. For Salem to get compensation for his injuries is galling and unjustified, but to give homeowners carte blanche to start attacking people means that the concepts of self-defence and protecting one’s family are completely undermined. If you want to pursue such a drastic change in the law then so be it, but don’t come running to me when a homeowner gets killed after starting a fight with a burglar.
Yours sincerely,
A.Tory
Witanagemot Blogs
Expect a plethora of comment on this one. My post from last week is still ongoing – its at 41 comments now. Indeed, I have just been accused of being left wing. And there was me thinking that the rule of law was a basic tenet of libertarian philosophy (neither left nor right wing). Clearly I was mistaken…
The law was applied correctly in this case despite sympathy we might have for Mr Hussain – and I have plenty of sympathy for him. However, as those (including the Tories, unfortunately) who want the law changed are failing to acknowledge, this was not self-defence, it was retribution. Any changes Grayling might want to bring in wouldn’t have applied to Mr Hussain anyway. Not unless the Conservative front bench want to legalise vigilantism.
There are areas where the legal process needs looking at. Sentencing being one, and it is sentencing that was the issue with this case. Otherwise it was pretty straightforward and the conviction sound.
I have to say that I am deeply disappointed to see otherwise rational people advocating mob rule.
Grayling is a total cretin – why not focus on the fact that Salem had 54 convictions, and was still pursuing a criminal career (for which he was yet again let off) despite these injuries?
Hussain possibly shouldn’t have done what he did (though a defence of ‘temporary insanity while his blood was up’ should be considered) but he should never have been put in that position in the first place.
As Longrider says, prepare for a lot of comments on this one!
I think that there are two issues here.
Firstly, yes, I think that the issue of home defence needs looking at as the ‘reasonable force’ bar is generally set too low in this regard.
However, as the judge observed in this case, the moment that you chase a badguy out of your house and start chasing him down the street with a view to beating him with an iron bar, you have gone beyond self defence. Which seemed a pretty astute ruling to me as it makes it clear that using a metal bar to subdue or expell an intruder in your home would probably be okay under these circumstances but taking the bar and beating the brains out of said intruder some distance away following a chase really isn’t.
And before people go off on one over compensation for the brain damaged robber, remember that he’s unlikely to get more than the £18k a year it would cost to put him in a high security prison.
“And before people go off on one over compensation for the brain damaged robber, remember that he’s unlikely to get more than the £18k a year it would cost to put him in a high security prison. “
But that isn’t the point, Shaun. It’s that he should receive any money at all for injuries brought on in the course of criminality.
He has been coddled and cossetted by the system for years, his every infraction forgiven by the state, and pretty much allowed to do as he pleases. Now, for once, he’s bitten off more than he can chew and once again, the state wants to wrap him in the warm blanket of taxpayer’s money…
The bleeding hearts may despise vigilante justice as they claim, but it seems strange that they seem to be ensuring the conditions where it will surely flourish…
Firstly, I think it is clear that the details of this particular case have been subverted to the agenda of several commentators and publications. This case was open and shut, under any interpretaion of the law as it stands, or as Grayling suggests it should be.
As for Grayling’s suggestion, I think it is a move in the right direction. There is an argument that if all but the most minimal of protection in law is offered to the burglar then he would think twice about his actions. This would have to include the right of the homeowner to bear weapons. We all know that the homeowner can pick up an item and use it as such, but then has to prove that he did not keep it for that purpose. That should be removed so that as a burglar enters a property he knows that the householder has the right to be lying in wait for him with a cricket bat.
Also, there should be a stronger legal caviat in compensation cases so that if an injury is inflicted by a lone ‘victim of crime’ inside his own property, then there can be no case for the homeowner to pay compensation. He law should create a larger hurdle to jump for the burglar.
However, that should never allow punishment beatings of the the kind in this case, nor the beating of an unarmed or disarmed man by a mob where a citizens arrest is perfectly possible.
If a gang broke into my house and threatened my family then reasonable force would involve a lot of pain. I have no time for the criminals that engage in such activities, and agree entirely with Grayling.
Alastair and Shaun, are you suggesting that it should be legal to use “disproportionate” force when faced with an intruder, as Grayling is proposing? I simply cannot see such a situation ending well.
@LFAT – ‘Disproportionate force’ is an odd idea. I’d leave the standard at ‘reasonable’ since courts and juries have lots of experience and caselaw to guide them as to what reasonable is.
However, I would legislate to make it legal to use weapons or implements per se for home defence and adopt the approach to civil and criminal compensation suggested by Tony above. In short I would seek to strip away some of the stranger effects of our laws and get back to allowing juries to decide if a defendant was justified in stabbing an intruder to death when discovered in the kitchen and embarking on a struggle near the knife rack. This allows for sufficient flexibility.
‘Disproportionate’ as a concept cannot work simply because you, as a victim, do not know if your attacker is armed. If he is, you can whack him over the head with a rolling pin to knock him out. If he isn’t, you’re going to face an ABH charge. But if you wait to find out if he’s armed, you may get dead.
This would have been an interesting one had Salem actually killed or seriously injured a member of the Hussein family THEN been pursued, apprehended and injured or killed (after the event). Because if the chase and capture were similarly remote from the event it might still be deemed post-event vigilantism.
@Shaun Pilkington –
Actually, Grayling’s idea of allowing ‘disproportionate force’ allied by the idea of reasonableness might not be unworkable.
If I create an example: A man enters your house armed with a knife, which he shows openly, but fails to realise that you are the holder of a licenced shotgun which you subsequently use. The level of force might be seen to be disproportionate to the threat but that under the circumstances it would have to be ‘grossly disproportionate’ to fail the test of ‘reasonableness’.
That may sound convoluted, but in other areas of law such tests apply, especially tests of responsibility in injury such as in compensation law, or under the eggshell rule in criminal or negligent injury.
I think my point about the lack of clarity in Grayling’s proposals is becoming more apparent!
It’s not often that I feel compelled to mention Texas on this blog but you certainly can’t fault their clarity: if anyone steps on your property, blow them into tiny pieces (and feel free to chase them down the street before doing so). Gotta love their attitude to law and order.
I think Grayling is making entirely good sense, particularly given an election is in the offing.
Someone enters my house and threatens me or my family, and reasonable force is whatever happens. Caveat Emptor! Grayling is entirely correct that a reverse outcome is perverse.
I will go further. If I go outside my house to remonstrate with a bunch of individuals making a nuisance of themselves, and they choose to threaten me, then the same concept of reasonable force applies.
This strikes at the heart of the nulabour policy, where the boot is entirely on the other foot.
In this case Hussain did over step the mark by chasing the criminal, but as ( I once a soldier) people may run away from you but that does not mean they are in retreat, they may have gone for more help, maybe coming in another door?
It is okay saying someone may use reasonable force, say someone breaks into the Prime ministers house and a police guard shoots the criminal? Why is it okay to do so for him and not have the right to protect yourself in such a way?
It was after all the Conservatives who banned pistols the last time they were in power, a pistol being the most useful of tools for this sort of thing, this problem does not appear in anyother country because through out the free world you can defend yourself, but here no!
It is high time the tide was changed and these people were afraid to go out at night, why should us normal people be afraid just to live a normal life.
I suspect that if:
a) Munir Hussain had any confidence that the police would treat the crime with the gravity it deserves, and would devote the resources required with the same vigour that they do to the peripheral, but easy to record a result, crap that they spend their time on;
and
b) He had any confidence that in the wildly unlikely event the criminal was actually caught, prosecuted and sentenced, that the criminal would be appropriately punished.
then he might have re-acted differently.
I don’t really want to support vigilantism but until faith in our police and judicial system has been restored then I applaud every blow of the bat that found its mark.
It is arguable that Salem might be liable on Health and Safety Grounds in that clearly he failed to do a proper risk analysis before engaging in his trade. Simply the greater amount of time you spend burgling a house, and the greater the range of activity and threats you employ, then the levels of risk that is danger can rise significantly. Clearly, local police forces should put immediate training H&S programmes in hand for their potential burglar clients. After all they know who most of them are already.
Isn’t the issue more about less rights for trespass than more\rights for homeowners?
If a person breaks into the home they have no rights to sue anyone for anything. Reasonable force etc still exists.
I was once called into our warehouse in the morning to deal with a body on the floor. He fell 80ft through a skylight. Even though he had been breaking in at 2am and fallen to his death his family tried to sue for
1} the alarm system failed to give a warning to alert the police that may have saved the man
2} the lock was too easy to break into, so encouraging him to try.
I notice his accomplice didn’t raise the alarm either. Why didn’t the family sue him?
Won that one, but it was a good ten years ago.
@Demetrius –
1st class.
I remember during the early 90s when my dad was an electrical subcontractor for LUL, working on tube platforms during the 5 hours that the juice is off betwenn just after midnight and just after 5. Safety was critical, but just in case anyone didn’t get the message, in order to be a subby on the tube you had to do safety courses and qualify as your own safety officer.
Just in case people didn’t get the message, the high value of copper encouraged the odd blagger to attempt to rob the large-bore copper cables that line underground tunnels. One night, one such blagger made it onto the platform and while the lads and my dad were waiting for the juice to go off so they could start work, there was a loud bang. Rushing to the platform, from where the sound issued, they found a man with an arm detached but a smoking, slightly charred shoulder, lying by the tunnel wall opposite the platform. His arm, hand still clutching a hacksaw from where it had foolishly been used to cut through a high-voltage, live, copper cable, lay smoking on the platform at the other end. Said individual was taken to hospital.
I don’t suspect he got any compensation and those on the scene thought no more about it than resolving to verify that the power was indeed off in the future before starting work.
Unfortunately trespassers suing has a precedent in law. Herrington v BRB back in the seventies. Herrington was a five year old boy who strayed onto the railway and was killed. His parents sued and won. That precedent really needs overturning. trespassers should not have the same rights under tort law as legitimate visitors and the property owner should not be expected to exercise due care towards them. In the Herrington case, the negligence probably lay with the parents (I don’t have all the details to hand), but the court decided that the land owner owed a duty of care to anyone who entered. Certainly a minor should be the responsibility of the parents or guardians rather than the owners of the property he strayed onto.
I believe, therefore, a burglar – who is most certainly trespassing – should have no rights under tort law. If they are injured or killed in the execution of their nefarious activities, then that’s just an occupational hazard, frankly. And, why are not the burgled suing the burglar for damages caused by the forced entry along with pain and suffering (a wonderful catch all) caused by the trauma?