"This was not vigilante activity. This was not a planned attack. It did not follow careful or even momentary reflection. Munir Hussain acted under extreme provocation. His involvement in this serious violence was a response to the dreadful and terrifying ordeal, and the emotional anguish which he had undergone. He had used some minor, entirely legitimate, violence towards Walid Salem when he threw the small table at him in his house and so helped set off the chain of events which brought the ordeal of his family to an end. Once he had been violent, his relief that his family and he himself were safe, and his understandable fury at what had happened, combined to make a decent, peaceful man act entirely out of character, in hot blood and, unsurprisingly, without detached reflection. His home had been invaded by a gang of armed men. He and his family were treated with contumely. They were in effect kidnapped in their own home. He feared for their lives. He feared for the honour of his wife and daughter. He did not know what had happened to his youngest son, and feared for what might already have happened. Those fears were amply justified. Thanks to his own efforts, at least in part, all of them were lifted. He might have reacted, as some would, with an overwhelming sense of relief and fatigue, and become incapable of any action. He did not. Nevertheless, it remains the fact that whatever he did in the immediate aftermath was a reaction. In such a fraught situation, provoked beyond endurance, and without contemplating what to do for the best, he reacted against one of the men who was responsible for everything that he and his family had undergone."
As a result, the
sentence handed down to Munir Hussain was reduced from 2 years, 6
months' immediate imprisonment to 12 months' imprisonment suspended for 2
years and the sentence of Tokeer Hussain was reduced from 3 years and 3
months' imprisonment to a term of 2 years' imprisonment.
This case, and those of Martin and Yaman (discussed in the Law Relating to Self Defence section), illustrate the kinds of problem that often arise when householders are confronted with an intruder. As a result, section 43 of the Crime and Courts Act 2013 adds to section 76 of the Criminal Justice and Immigration Act 2008 a new subsection (5A) the effect of which is to apply a lower standard of what is reasonable in householder cases. Section 76(5A) provides:
a householder case, the degree of force used by D is not to be regarded
as having been reasonable in the circumstances as D believed them to be
if it was grossly disproportionate in those circumstances.
To emphasise that section 76(5A) applies only in householder cases, subsection (6) provides:
In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
The intended effect of section 76(5A) is clear. Provided a householder acts honestly and instinctively when protecting themselves or others from an intruder using a level of force that was reasonable in the circumstances as they saw them then they will not be guilty even if that level of force turns out to be disproportionate in those circumstances. The householder will only be guilty if the level of force used was grossly disproportionate.
However, the householder will not be entitled to rely on this heightened defence if he acts for any purpose other than to defend himself or others (see, section 8A(a) below). If, for example, the householder uses force to protect his property then the rules on reasonable force will apply.
Whether or not the level of force used was disproportionate or grossly disproportionate turns on the facts of each case which, similar to the law on self defence generally, includes the personal circumstances of the householder and the threat posed by the intruder, whether real of perceived. One thing seems clear; that is defendants such as Martin, Hussain and Yaman ought to be treated more favourably by the courts under the new law. As is obvious from the new subsection, it only applies to "householder" cases which are defined in section 76(8A) and (8B) of the 2008 Act as:
(8A): For the purposes of this section 'a householder' case is a case where:
(a) the defence concerned is the common law defence of self defence
(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both)
(c) D is not a trespasser at the time the force is used, and
(d) at the time D believed V to be in, or entering, the building or part as a trespasser.
(a) a part of a building is a dwelling where D dwells
(b) another part of the building is a place of work for D or another person who dwells in the first part, and
(c) the other part is internally accessible from the first part
that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as part of a building that is a dwelling.