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It’s hard not to feel sorry for Munir Hussain and his brother Tokeer.

But put your emotions to one side and see if you can find Munir and Tokeer a defence in law.

“Mr Hussain’s nightmare began on September 3 last year when he, his wife, 18-year-old daughter and two sons aged 18 and 15 returned from their mosque during Ramadan to find three intruders in their home in High Wycombe, Buckinghamshire.

They were tied up and told to get on the floor if they did not want to be killed. One of Mr Hussain’s sons managed to escape and alerted Mr Hussain’s younger brother Tokeer, 35, who lived a few doors away.

Mr Hussain made a break for freedom by throwing a coffee table at his attackers. He and Tokeer chased the gang and brought Salem to the ground in a front garden.

Reading Crown Court heard how Mr Hussain and his brother then beat Salem while he lay on the ground, using a cricket bat, a pole and a hockey stick – leaving him with a fractured skull and brain damage following the ‘sustained’ attack.

Salem’s condition meant he was unable to enter a plea to false imprisonment. He was given a non-custodial sentence-in October.

Salem, of Borehamwood, Hertfordshire, did not give evidence at Mr Hussain’s trial. Michael Wolkind, QC, representing Mr Hussain, who runs a soundproofing company, said his client’s actions were ‘taken in the agony of the moment’ and that his ‘calm judgment was not available’.

Judge Reddihough sentenced Munir Hussain to 30 months in jail for grievous bodily harm with intent. Tokeer was given 39 months because the judge said he had not faced as much provocation as his brother.

The judge added: ‘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.

‘However, the attack which then occurred was totally unnecessary and amounted to a very violent revenge attack on a defenceless man.

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

‘The courts must make it clear that such conduct is criminal and unacceptable.’ [Source]

In my previous post,Top Marks for Problem Question Answers, I set out how to approach answering this type of question. In an exam, you might, for example, be asked to consider the criminal liability of Salem, Munir and Tokeer.

Firstly, you’ve got to deal with the offence before you think about any possible defence.

If you were dealing with Munir’s criminal liability, the main issue to consider would be whether his hitting Salem over the head with a cricket bat causing brain damage amounted to s 18 OAPA (Grievous Bodily Harm with intent).

S18 states: “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, or with intent to to resist or prevent the lawful detainer of any person, shall be guilty of a felony…”

The actus reus for s18 is satisfied as S’s brain damage has occurred as a direct result of M hitting him over the head with a cricket bat.

The mens rea of s18 (specific intent) is also satisfied as M hit S over the head with a cricket bat repeatedly and with such force that he caused his skull to be fractured (i.e. intent can be inferred as per Nedrick where the serious harm is “virtually certain”).

As the A/R and M/R or s18 have been satisfied, M is guilty of GBH with intent.

The key to this case is, having been tied up by S and others, whether there is any defence in law available to M?

First consider whether there are any General Defences available. The General Defences include: Automatism, Intoxication (voluntary or involuntary depending on whether the offence is a specific or basic intent crime), Insanity, Mistake, Duress and Defence of Self, Others or Property.

Insanity is defined by the M’Naughten Rules and there is no evidence that M was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong”.

M may have been extremely distressed, but there’s no evidence that he had a “disease of the mind”. (Compare this with the Diminished Responsibility “abnormality of the mind”. At the time of the attack, M probably did have an abnormality of the mind, but the Special Defence of Diminished Responsibility is only available under the Homicide Act – and S is alive! Note also that Provocation is not a General Defence; it is a Special Defence, also under the Homicide Act.)

Further, Defence of Self, Others or Property is not available to M.

S3(1) of the Criminal Law Act 1967 states, “A person may use such force as 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”.

There is no “prevention” or self-defence in this case as S was running away. M’s self-defence/prevention of crime moment had passed and his chasing S down the road and beating him up hitting was revenge. Therefore, this defence is not available to him.

Many people in the UK were outraged that M, the victim of a serious crime, received a 30 month prison sentence for GBH on S.

Today, Munir was released from prison by the Court of Appeal and on grounds of mercy, his jail term was reduced to 12 months suspended for two years. [Source]

Do you agree with the Tories that the law of self-defence needs to be changed – or do you think the law is adequate as it stands? Did the Court of Appeal deal with Munir justly and fairly?

A copy of the trial judge’s remarks on sentencing here.