Firstly, allow me to make yet another apology for the huge gap since my last post. Yes, I know I’ve actually missed an entire horoscope. I hope each of you did the only sensible thing possible in the circumstance and didn’t leave your house in case destiny was planning to violently offend you the second you stepped through your door.

It was the only option.

Anyway, I have been very busy, very stressed, and much as I enjoy writing for you dear people it would possibly have killed me.

So what is it that has stirred my mind and dragged me away from the unending tide of shite that fills my desk/bag/brain on a daily basis? Well it’s an old thing that I used to explain to people over and over on MSN messageboards when I could be bothered to irritate and undermine the other opinionated tosspots who bothered with those sites.

Last week, a businessman called Munir Hussain received a 30 month sentence for wounding with intent, after he assaulted a man who had burgled his home and tied him and his family up before threatening them with knives. This has caused absolute outrage in the tabloid media, and the Conservatives are now trying to make political capital out of it by saying they would allow homeowners to use anything but “grossly disproportionate” violence against anyone who breaks into someone’s house.

Now let me make one thing clear: I have sympathy with anyone who has their home broken into. Burglary is one of those crimes that always leaves an impression on the victim, as the sanctity of their home has been tainted by the incident. I have been victim to burglary, and know many others who have, so I mean it when I say I can understand the desire to get some form of revenge. But that doesn’t make it right, and it certainly doesn’t make it legal.

Contrary to what the Tory Smugs would have you believe, members of the public are already allowed to use reasonable force (i.e. force that isn’t grossly disproprtionate) to protect themselves and their property. It’s the principal of self defence, and it’s something I have probably explained to dozens of confused clients over the past few years.

The key issues or phrases though are self defence, and reasonable force.

Let me explain. You can use force if you have a genuine and reasonable belief that it is necessary to use force to protect yourself, someone else, or property. However, once you/they/it is no longer at risk, you are no longer defending it. You are retaliating. For example, someone comes at you with a wild look in their eye, and a fist raised. You use your years of ninja training, and deftly knock the assailant to the floor with the skill of a grand master. They are humiliated, and crawl away regretting ever breaking into the home of Chuck Norris’ harder brother. If you then run up behind this person and give them a few more kicks to teach them a lesson, you are not protecting yourself but assaulting them. This is illegal.

So, back to Munir Hussain. He and some of his family got free and chased the burglars off. As the assailants were running away, one got caught and overpowered and attacked. I’ll go into more details below, but I wanted to firstly clarify that Hussain was not defending his property.

Ok, so second point is that force used must be reasonable. Or, of you’re a Tory not “grossly disproportionate”. Actually, if you’re a Tory why are you reading this. You are officially banned. I’m not looking for political censorship, it’s just you seem to be favouring a party with very few actual policies other than those designed to support the massively wealthy, and other pathetic publicity seeking twoddle like the one we’re debating here. So you’re banned from reading this. Bastards.

Sorry, where was I? Ah yes, reasonable force. The best explanation of this I can give is that if we go back to our example before and someone runs towards you with a fist raised, it would be excessive to shoot him in the face with a Dirty Harry-style Magnum (the handgun, not the ice cream). The force you use to protect yourself must be proportionate to the perceived threat against you or your collection of Sylvanian Family beavers.

Now the Courts have made it very clear that if you think you are about to be attacked, you cannot weigh up the precise level of force needed to protect yourself and nothing more. Much of the case law on this point is making it very clear that what matters is what’s reasonable in the circumstances as they appear to the person claiming to defend themselves. That’s pretty accomodating really, and allows for the grey areas that exist in the real world.

What isn’t allowed under the principal of reasonable force is the following: the use of a pole, a hockey stick, and a cricket bat to beat someone so severely that you fracture their skull and cause permanent brain damage. Step forward Mr Hussain, and take a bow. Not only did you attack someone who no longer posed any threat to you, but you absolutely twatted him! (possibly not the terms used in the Judge’s summing up). Again, this is illegal.

I have seen a number of comments and articles referring to the level of provocation that Hussain had suffered as a result of this burglary. Well, yes he clearly was more than a little pissed off by what had happened, and I’m sure that that anger fuelled him as he took a few extra swings with his cricket bat. But provocation is not a defence to assault. I wish it was- my already impressive (hey it’s my site so I’m allowed to blow my own trumpet) record of trial wins would be even better if I could rely on the playground-level defence of “he was asking for it!” At best though, provocation is mitigation. It may put his actions in a proper light, but it doesn’t make them right or lawful.

What’s also significant is that by taking the law into his own hands, Hussain effectively prevented the legal process from dealing with the burglar in the proper way. Due to the level of injury caused in the incident, the burglar was not fit enough to enter a plea to the charge of unlawful imprisonment.

Perhaps I’m just defensive because I am part of the justice sytem and I like to try and justify my own existance. It confuses me though that the press are making such an issue of the fact these men were convicted, considering they  were found guilty after trial by a jury of ordinary citizens (not an “out-of-touch” judge).  Perhaps the sentence of 2 and a half years is a bit much, and I’m sure that the Court of Appeal will be asked to reduce this.

So hopefully I’ve put things across in a reasoned way that will help people to have a better understanding of the way the criminal justice system here in England views these cases. Whether it’s right or wrong is something each person has to consider for themselves. Let me pose a few rhetorical questions though to encourage a bit of reflection:

Do we really want a world where people are allowed (and therefore encouraged) to exact summary justice against an individual who has wronged us?

What if they had got the wrong man, or someone who had looked like the burglar?

What if they had killed him- would the press be sanctioning mob justice and a non-judicial death sentence?

Where do we draw the line if we go down that route? If someone takes a parking space or blocks you in, are you entitled to poke them in the eye or smash their headlights with a crowbar?

One other question though… if anyone can look at the details of Steven Gerard’s trial for affray earlier this year, when he managed to successfully run a self-defence argument, and explain how the whiny scouse gimp got away with it, please let me know. Obviously it’s not the case that a Liverpool Jury would be influenced by the prospect of sending their football club captain to prison, is it? And I’m not saying for a second that it’s remotely improper that the trial Judge and Prosecutor were both fans of Liverpool FC… am I?

Right. Sorry there weren’t many chuckles in this. Will try to rectify that soon, with tales of TechnoScouse or something similarly jovial.

For further reading, please feel free to laugh at the indignation of the Daily Mail readers at the bottom of this handy link. I hate Middle England, mainly becuase I grew up there!