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I have been following with some astonishment a story from the UK which has received extensive coverage in the British media, mostly coming from an outraged public critical of the punishment meted out to the two victims of a home invasion. This is today’s BBC report, lightly edited:

A businessman who was jailed for permanently injuring an intruder who attacked him and his family has been freed by the Court of Appeal. Munir Hussain 53, was sentenced to 30 months for grievous bodily harm with intent after he hit Walid Salem with a cricket bat on 3 September 2008. Hussain and his family had been tied up by three intruders at their home in High Wycombe, Buckinghamshire. His jail sentence is now 12 months suspended for two years. These is also a supervision requirement for the two years. Lord Chief Justice Lord Judge, who was sitting with two other judges in London, said he had shown “mercy” to Hussain. His brother, 35-year-old Tokeer Hussain, who was also jailed for causing grievous bodily harm with intent, had his 39-month jail term reduced to two years.

The 2008 Criminal Justice and Immigration Act provides that homeowners who use reasonable force to protect themselves against intruders, and use no more force than is absolutely necessary, should not be prosecuted. However, there are additional factors. The homeowner should be acting instinctively, fear for their own safety or the safety of others, or act in order to make a lawful arrest (or prevent someone who is lawfully detained from escaping). The law does not protect those who set upon a fleeing criminal or who lie in wait to attack them. This would amount to people taking the law into their own hands. The Lord Chief Justice made it clear that the Hussain case was ‘exceptional’, and that the ‘call for mercy’ had to be answered. Hussain and his brother, who were both described as being at the heart of their community, were imprisoned in December after being found guilty at Reading Crown Court. The court heard Hussain and his wife and children returned from their local mosque to find intruders wearing balaclavas in their home. They were tied up but the businessman escaped and enlisted his brother to help chase the offenders down the street, bringing one of them to the ground. The pair left Salem with a permanent brain injury after hitting him with a cricket bat. The force of the blow was so hard that it broke the bat into three pieces. Lord Judge said: “This trial had nothing to do with the right of the householder to defend themselves or their families or their homes. “The burglary was over and the burglars had gone. No one was in any further danger from them.” The decision to free Hussain comes one day after judges rejected his appeal against his conviction.

Metropolitan Police Commissioner Sir Paul Stephenson said people who put themselves in danger to tackle criminals should be celebrated as “heroes”. Courageous members of the public “make our society worthwhile”, he said as part of a widening political debate about the rights of people to use force to defend themselves.

(Republished from The American Conservative by permission of author or representative)
 
• Category: Foreign Policy • Tags: Immigration 
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  1. Although I sympathize with the outrage of this article, I have to agree with the court. I cannot perceive anywhere in the Anglo-American tradition where a person can use deadly force (anything but one’s body is a lethal weapon) on a suspect to make a citizen’s arrest; deadly force can be used only if the suspect uses deadly force first. What is more disturbing is that the defendants may have used the bat on the criminal after he was down; that goes from hot pursuit of a criminal for a citizen’s arrest to some sort of vendetta justice where the victim becomes judge jury and executioner. This sort of lynching has never been part of Anglo-American common law and only accepted as “justice” in the most lawless of places.

  2. “deadly force can be used only if the suspect uses deadly force first.”

    That’s a riot.

    Seriously, chasing a burglar down the street and braining him with a bat is out of bounds, but if someone breaks into my house, I’m not waiting until he uses deadly force on me or my family before I use it on him. Burglars beware.

  3. It is the element of subsequent pursuit that invalidated the claim of self-defense. Here in the United States, the law is generally — not across-the-board uniformly — that the private person may use deadly force only to protect his own life or limb, or life and limb of another who is entitled but unable to defend himself or herself; from immediate danger of deadly attack or grievous bodily harm; some jurisdictions explicitly include sexual assault here. The act must be a logical and reasonable response to the act of aggression, and it must be what is necessary to stop the aggressor from persisting; in response to the aggressor’s intent, the aggressor’s perceived ability to inflict death or GBH, and the aggressor’s perceived opportunity to do so, whereby the defender has grounds to believe himself or herself in jeopardy. Once the aggressor has desisted — manifested explicitly by flight — right for the defender to use deadly force has ended.

  4. TGGP says: • Website

    If you threaten such force against innocent people, you are estopped from objecting to them treating you in such a manner.

  5. The sentencing would have been much the same in the USA. Self defense in one’s home is a very different matter from pursuit and attack. Of course we can all sympathize with Munir Hussain. He must have been outraged and frightened. It’s difficult to restrain one’s self under such trying circumstances. Under our system, Mr. Hussain’s best hope would have been mitigation arguments at sentencing. I don’t know enough about the British system to comment on how this plays out there. A similar situation occasionally happens in the US, when persons keeping firearms at home shoot burglars in the act of retreating. My understanding is that lenient sentences are the norm in such cases.

    All this said, the UK is plagued with home invasion cases and their judiciary is quite strict in prosecuting people who are clearly defending themselves on their own property. That is why the case is in the news. Brit’s are largely disarmed and in the hands of a legal system that hasn’t respected common law notions of personal autonomy in a long time. Alas, we are probably headed in the same direction.

  6. TomB says:

    Actually, one can snipe more than just a bit at the law here. So as to make the point more pointedly what if, after freeing himself, Mr. Hussein had found that his wife had been murdered by this fleeing guy? Would still be in bounds pursuing the guy for a citizen’s arrest essentially, but not using lethal force to apprehend him, right?

    So, ergo, the law effectively says that such perps have the right to get away. All they have to do is resist enough so that lethal force is necessary to stop them, which is not a bar many would find hard to hurdle.

    It also therefore effectively says that Mr. Hussein isn’t entitled to justice then either. He *must* let the guy flee once he resists. And do people realize what a pathetic percentage of crimes are actually solved by the police doing their later investigations?

    I know the objections of course; to say otherwise is to invite people into making erroneous lethal-force citizen arrests. But why isn’t this solved by still punishing same, and yet having exemptions for when they *aren’t* erroneously carried out?

    Yes yes, the counter-argument goes, this still wouldn’t deter potential erroneous arresters because of course they always think they are right.

    But … why is it that when making judgment calls like this we always seem to be told that the law has to come down on the side of actual criminals so as to allegedly only deter potential ones?

    Same thinking can apply to only the robbery here: The perp effectively given the *right* to flee, the victim the denial of the right of justice. And then as re the argument that allowing the possible infliction of death is too harsh a sentence for resisting a citizen’s arrest for robbery, once again it’s interesting that when making this judgment call we are told that the law must come down on the side of the admitted arrest-resistor instead of the victim who is only *potentially* a criminal if he is wrong in making his arrest.

    Not necessarily saying I’d go changing the law willy-nilly, but I do think some of the predispositions built into the law today could stand a gimlet-eyed look.

  7. @Jack: Let me clarify, once the offender goes into retreat, even after attempting to use deadly force, you cannot use deadly force to apprehend the offender. You may want bring a weapon in the event the offender attempts to use deadly force to avoid your pursuit, but to use deadly force to stop a retreat has never been part of the Anglo-American common law.

    @Robert: I think the developments in American law that require the victim to retreat before using deadly force on an attacker using deadly force is utter nonsense. A person should have the freedom and security to stand their ground because the attacker does not have the right to attack or threaten to attack another person.

    @Thomas: Considering this case has such questionable facts, is this the cause celeb because the British are frustrated with judicial indifference to self-defense in one’s home or because Mr. Hussein Mr. Hussein.

    @TomB: Under what circumstances can braining a man be anything but vigilantism. The criminal has no “right” to flee but in his retreat he does not deserve to be killed without due process. Again, if the victim is in hot pursuit and the “perp” attempts to use deadly force to evade arrest, one could argue deadly force is allowable, but to use deadly force to stop a prep’s retreat is contrary to the common law. Not even a cop can use deadly force to stop a mere perp’s retreat, how can a citizen be given any more leeway.

  8. Anonymous • Disclaimer says:

    @TomB

    You seem to be stuck with a critical idea. You make it seem it seem as if he only had two options….pummel the suspect with a cricket bat or let him get away. That, friend, is faulty logic. Once they’ve chased down, and subdued, the suspect, can they not just wait for police to arrive?

    Therein lies the problem for Mr. Hussain. What he achieved was not justice, but rather vengeance…..no country in the western world would have let him off without being charged.

  9. TomB says:

    Publius and bodhi:

    Both of you mangle my meaning so as to knock down an easy straw man (“TomB is advocating the allowance of killing for mere fleeing!”), but I’ll take the blame for using the phrase “lethal force” instead of “potentially lethal force.”

    Nor even was I saying that if a fleeing perp resists to any degree it ought to be allowable to kill him.

    What I’m asking (not advocating really, just idly pondering here a bit) is why, once a fleeing perp has refused to stop and resists arrests, can’t such force be used so as to stop him, which force might, due and dependent upon the nature of the resistance he or she puts up, end up turning lethal?

    In other words, the law allowing only such use of force necessary to subdue the resister, but recognizing that fleeing felons may well resist so strenuously—and lethally against their arrestor too it should not be forgotten—that the resistor is *unintentionally* killed in the act of subduing him or her.

    Now I don’t know the specifics of the Hussein case here, but from what we’ve been told by Phil such a law may well not have protected him: Was his fleeing perp resisting at all? Unknown. That’s why I think you guys *might* be wrong by saying Hussein was wrong, and that’s why I used a hypo.

    But, again, let’s assume Hussein’s perp *had* killed Hussein’s wife, and that when Hussein cornered him he *had* demonstrated resistance violent enough so that something like hitting him with that cricket bat was necessary to subdue him. I’m not sure that I’d support putting Hussein in jail unless you could prove that in hitting his perp he intended to kill him as opposed to merely subduing him.

    (And since this *doesn’t* seem to have been English law here, this illustrates my entire point which was merely pondering whether the law doesn’t too often come down on the side of the criminal and against the citizen crime-resistors.)

    Contrary to you, Publius, it would indeed be effectively granting a right to flee if one outlawed the use of potentially deadly force once such resistance was shown that could only be subdued by potentially deadly force. Of *course* that would effectively be granting that right.

    In fact, I’m not sure that what I’m just (off-handedly a bit) suggesting ought to be the law *isn’t* the law still in at least some U.S. jurisdictions. And indeed suspect it *was* the law here for a long long time.

    That is, contrary to your repeated assertions Publius, if my memory serves I am almost certain that it was the absolute norm of American law—and thus probably black-letter common-law too—that cops sure as hell *could* use lethal force to stop a merely fleeing felon who wasn’t otherwise resisting. And I further suspect that the law at one time extended that right to mere citizens pursuing fleeing felons too, but I’m less sure about that and it’s merely a hunch.

    Today, as regards cops at least in some if not many jurisdictions that law may indeed *still* be the law, but I suspect however that in many at least (if not most jurisdictions) it’s been changed by statute, or effectively by police department regulations, or by the courts changing their jurisdiction’s common law, or etc., etc.

    Bottom line:

    Essentially, my way of looking at it is this—and I think the way the law looked at this for a long long time too and thus I’m only suggesting we think of going back—would be as follows: Did Hussein have a right to pursue? Clearly yes. Did he have a right to insist on the perp stopping? Yes. Did the perp have the right to flee? No Did he have the right to resist? No.

    So, assuming he *did* resist, what was he doing except essentially assaulting Hussein while Hussein was acting perfectly within the exercise of his rights, true? Therefore, Hussein had the right to defend himself in this, as well as to use such force as was necessary to subdue the perp from further fleeing. If that force unintentionally resulted in the perp’s death, then Hussein maybe shouldn’t be guilty of anything.

    And to the degree that English law or American law doesn’t see it this way, I’m merely suggesting that it might bear looking at.

    Cheers,

  10. TomB, if he needed to use deadly force to subdue the perp, then I can see no crime. But the question becomes, was deadly force necessary. If the perp never attempts to resist, but just flees, it’s probably unnecessary. If the perp attempts to resist with his bare hands only, it’s probably unnecessary. If the perp attempts to resist with deadly force, it is probably necessary. If a perp intrudes into your home and remains so, deadly force is probably necessary.

    But under the facts, where the perp was in retreat, he left the Mr. Huissan’s home and he was down, he was defenceless and Messrs. Huissan beat him senseless. Granted the perp, was pond scum who is a poster boy for enacting the death penalty in the UK, but even if he deserved everything he got, he also deserved due process.

  11. TomB says:

    Publius:

    Because of getting frustrated dealing with our various hypos I did just a few minutes of googling this Hussein case with the intent to try to find out what actually happened and, more importantly for our discussion, what Brit law actually was.

    Don’t have the time to learn how to find Brit law directly but from the links I’ll post at the end here it appears (A) that there’s no mention of the perp here having resisted (beyond fleeing), but also (B) that Brit law did *not* grant Hussein the right to try to use any force whatsoever to stop him from fleeing. From these news reports it seems that the only justifiable use of force in GB is to resist its use on you or your family or companions or other innocents and etc., but once that is stopped your right to use force ceases too, totally. None whatsoever allowed to stop flight even, not even non-lethal apparently.

    So, as re (B) this is exactly what I was getting at originally: Here, just as in other instances I think, including in U.S. law, too often I suspect that law has been changed (probably by Lefties) to be overly much concerned against “vigilantiism,” and makes too many judgment calls in favor of the criminal instead of the citizen.

    I mean … as I said before, by not allowing the use of any force to stop one fleeing the one fleeing sure is for all intents and purposes given the right to successfully flee. And the crime victim is, unless the cops by some miracle do catch the perp later, absolutely deprived of his right of justice.

    But we absolutely agree that here, where there doesn’t seem to be any contention that the perp resisted other then fleeing and didn’t use any lethal force to resist, that he should not have had his skull mashed in. Even if, as it appears, that he was somewhat of a hard-core long-time criminal and had threatened Hussein and his family with a knife. Indeed I thought the judge who sentenced Hussein went a bit overboard in his solicitude for him with his remarks clearly indicating that he didn’t want to have to sentence him at all. Again there might be some details not contained in the reports I read (did he brandish that knife when cornered?), but geez, it does seem just like you said, Hussein and his brother just chased this jerk down, got him down, and right away started smashing him repeatedly over the head with that cricket bat. (To the point where the guy is apparently permanently, profoundly brain damaged.)

    Those links:

    http://www.telegraph.co.uk/comment/columnists/simonheffer/6840664/Munir-Hussain-case-shows-we-should-lock-up-the-guilty—not-the-innocent.html

    http://www.telegraph.co.uk/comment/columnists/philipjohnston/6822702/Was-Munir-Hussain-supposed-to-let-the-intruders-escape.html

    Cheers,

  12. I was watching Errol Flynn in The Charge of the Light Brigade tonight and began to think again about the home invaders. Surat Khan had invaded the home of the 27th Lancers, which was Fort Chukoti, and had the soldiers and their families completely in his power. He killed all of them (except Errol and Olivia de Haviland), including the children, and, it was implied, that his men had raped the women before killing them. Surat Khan reappears several years later on Balaklava Heights where he is last seen running away from the vengeance that is about to descend upon him in the form of Errol wielding a lance. Surat Khan winds up dead instead of standing trial at the Old Bailey where some smart lawyer will try to get him set free.

    Now it seems to me that if an armed intruder wearing a mask to conceal his identity breaks into my home, ties up my family and me, and threatens us with death if we do not reveal where our valuables might be hidden, that person or persons has all of us completely in his power and can do with us whatever he wants, be it rape, murder, torture or burning all of us alive. He could conceivably rape my wife in front of me, then proceed to torture her to death and I would be able to do nothing about it. That the criminal justice system should protect him because he has rights would not occur to me when he is violating my family in front of me. Now suppose for a minute that I manage to escape from my bonds and somehow get hold of my trusty Sig 9mm. The perp at that point might realize that the table has turned and might head off out the door and down the driveway. Now I could breathe a sigh of relief and let him run hoping that the police might somehow find him and that our criminal justice system might somehow work the way it is supposed to work. Or I might consider, to cite another movie great John Belushi as Bluto in Animal House, that it’s not over until I say it’s over. The bad guy initiated the horror by his own actions and I could be the one to finish it. I could shoot him in the back and he will not be able to threaten me or my family ever again. I think that for dealing with someone who has invaded my home and threatened my family with death there would be no hesitation on my part as I pull the trigger.

  13. TomB says:

    Phil:

    And what would you have the law do to you—if anything—if it turned out that you had shot the wrong man who you did not yell “Stop” at and who—per your hypo—you clearly killed purely and simply out of revenge?

    I doubt you would say that the law has no right to be concerned for such innocents, right?

    In short I’m not sure about any legal scheme that didn’t reserve unto itself the right of punishment. Indeed isn’t that the very definition of government? I.e., the monopolization of the use of force? And isn’t it difficult to carve exceptions out of same that doesn’t swallow the rule?

    In your hypo in the first place even if you didn’t utter the slightest after-the-fact statement indicating that you were still acting in self-defense (fear of the guy returning), I think the only thing you could be convicted of is a lesser homicide charge of “in the heat of passion” at worse, and maybe indeed only negligent homicide (“manslaughter”) so long as you said no, you didn’t necessarily shoot to kill but just to harm. Plus, even after being convicted of whatever of these, I think you’d get a whale of break on sentencing, just like this Hussein guy did where he didn’t just reflexively shoot at this guy, but seems to have set about with much more deliberation taking the time to get him down and beat him on the head repeatedly with that bat.

    Moreover, if after your shooting you did indeed utter anything in the vein of anticipatory self-defense, I think depending on the jurisdiction you’d have a good chance of the prosecutor choosing to not even charge you, and then, even if he or she did, of having a jury acquit you.

    Not saying I wouldn’t be clapping if I saw you do as you hypothesize (shit, I’d hold the guy down for you to get a cleaner shot), but I at least have a hard time seeing how one can draw the law to be unconcerned with this and not throw open the doors to an awful lot of mischief.

    The rule of law is far from perfect but I think that perhaps the hallmark of truly destructive, insane Leftism has been its all-too-frequent flirtation with the idea that whenever it suits its purpose it can throw out the wisdom the rule has demonstrated over the centuries, and make up its own smarter rules as it goes along such as with the Marxist-Leninist idea of “revolutionary justice,” or even in just defending looting during riots and etc.

    Indeed I think at the anti-war.com site I think I saw a piece by that very conservative economist Paul Craig Roberts arguing with some considerable force that perhaps the greatest damage we have sustained over the last decade or so has been the damage done to the rule of law.

    I’d still hold the guy down for you though. Maybe even draw a bullseye around his crotch.

  14. Alf says:

    As any police officer, at least in the still reasonably sane midwestern US will tell you, If you have a home intrusion and fear for your life, make sure there is only one story the police will hear;yours. Kill the son-of-a-bitch , perhaps saving someone else’s life down the road, and ridding humanity from vermin.

  15. Mr. Giraldi:

    In war sometimes soldiers are killed in retreat because it’s war, but what if Khan had surrendered? Under the pre-Geneva rules of war, he would be subject to some proceeding, perhaps something as simple as confirming his ID before dragging him before a firing squad. In war the standard of using deadly force is one of resistance, you dont kill enemy soldiers after surrender without some reason and usually some sort of proceeding. Even the Germans (1871) gave the franc-tireurs some process before executing them, despite being in clear violation of the rules of war.

    But criminal procedure, those things based on common law in the Anglo-American world, not the rules of war, have a different standard for the use of deadly force: necessity. Necessity usually means, at a minimum, the other person must be attacking you with deadly force. Now the rule itself has been mutilated in various jurisdictions, some requiring the victim to have no retreat before using deadly force, some making the use of deadly force while defend ones home per se necessary or some making up rules on premeditation (like the UK). But the long standing common law rule on deadly force has no application to this case because these men apprehended the perpetrator, subdued him and started beating him.

    The case went from one about self defense and citizens’ arrest to a curbstomping about the time the Hussains brained the criminal with a cricket bat. I am a strong supporter of the castle doctrine and the stand your ground principle but neither of these would help the Hussain brothers. It’s one thing to simply use deadly force to apprehend a criminal at large to make a citizen’s arrest, especially if you know the criminal is armed (the perp had a knife), its another to engage in a beating. Unfortunately, the Hussains engaged in a beating

  16. This case needs to be set against not only the epidemic of home invasions in the UK, but the notorious lack of follow-through by the police there. British police have been defenestrated by PC. Urban dwellers in the UK know that a burglary my never even be investigated. And as here, it’s much easier to cite the homeowner than the perpetrator who has escaped. Under such circumstances it’s not hard to see how such vulnerable citizens can react with fury.

    This seems to be a flaw in the British governmental mind set. It was not uncommon for the Crown authorities to come down harder on our ancestors than they ever did on North American Indians. This tendency to treat His Majesties noble savage subjects with deference at the expense of his own kith and kin was an underlying reason while the early Americans were as harsh on the remaining Indians as they were. This situation was played out in Australia as well. After one hundred years of sheep stealing and murdering by the aborigines under royal protection, the Australians responded with violent expulsion as soon as they could. The British need to cosset the minority at the expense of the majority goes far back in History.

  17. TomB says:

    You know I think this whole subject also has some relevance in terms of how more traditionally-minded people (conservatives, libertarians and etc.)—but especially their self-appointed organs and spokespersons—have way too often marginalized themselves by being pure reactionaries in the face of new social facts and phenomena.

    What I’m thinking of here is the reaction of conservatism to the rise of feminism which can be seen as having been initially hostile and to have now perhaps subsided into a kind of grudging acceptance of some of same (Sara Palin even saying she’s a feminist I think), albeit with considerable wary suspicion still in evidence. Nevertheless, lots of the initial reaction during the crucial opinion-forming time was purely negative.

    If you look beyond the feminist movement’s spokespersons though and etc. to the everyday women who form their targets I think the whole self-defense/gun issue could have formed a simply huge way for conservatism to forge stronger and new friends amongst them.

    Go to the courthouse in damn near any even medium-sized city today and I’ll wager you’ll be astonished to see the sheer numbers of women taking Temporary Restraining Orders out against some idiot males who were indeed harassing them if not beating the hell out of them. And then after sitting through all the hearings on the applications for such new TRO’s, sit and see the number of hearings needed to deal with all the instances of past TRO’s being violated willy-nilly by those males. You will be astonished I bet.

    So here you have this huge reality, and also I think the huge reality of a background, atavistic fear in *most* women stemming from their knowledge that they are both particularly attractive to the violent, and particularly vulnerability to them too, and yet how come the Republican Party doesn’t seem to play well with women? How come when it talks about having robust rights of self-defense and comes out against gun control it seems like it’s only interested in the Bubbas?

    In short, how come it can’t seem to produce even *one* young divorcee’, say, who saved her life from her crazed ex-husband by utilizing a handgun, and who will say that no, she would never have been able to learn to handle a long gun?

    Instead, here’s my most recent recollection of anything coming near the “conservative” take on such things: Rush Limbaugh, pretending to dissect but in reality clearly and lovingly ridiculing the self-defense claim of some lady who killed her ex-husband or ex-boyfriend … despite the absolutely undisputed fact that over the years the thug had terrorized and beaten her time and time again.

    Makes you believe in the old saw that while the Republicans have the better ideas the Democrats have the better people. Might it not be that the real problem with the Republicans is that, seemingly with no exceptions whatsoever at times, their leaders are really just so blindingly pig-ignorant?

  18. TomB – There are many such stories of women defending themselves with firearms. The NRA runs them as a regular feature on their media. Of course the main stream media never highlights such stories. There is an active movement among some women to embrace self defense and firearms proficiency in general. It’s a minority movement but it is not insignificant.

    The problem in my view is that at least among the women I’ve spoken with, the idea of actually shooting someone is just out of bounds on a very deep level. That, and just the noisiness, metallic hardness and lethality of firearms is off-putting. This is the reason for all those restraining orders.

    Which relates to the central question of the post, women, and liberal men reject the central notion of personal responsibility. Personal responsibility for self defense, fiscal probity, life planning and more are seen as too important for individuals. So collective responsibility is to be preferred in all cases. In the end that means that left/collectivist government’s monopoly on violence trumps individual discretion in almost all cases. At some point the very idea of personal self defense is functionally abandoned.

    The British case should remind us that in our own country there are many areas where the government cannot even pretend to deliver a safe environment, yet insists on disarming the citizenry and lowering the boom on anyone who steps over the line in response to criminal attack. Liberals would rather die than take responsibility for their own personal safety and they insist that their decadent position be applied to the rest of us. This also explains why the most lawless portions of our republic have the strictest weapons laws.

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