Hussain & Anor, R. v

Serious violence against a burglar who is defenceless and no longer poses any danger is unlawful where it is retaliation or revenge, rather than self-defence, defence of others or the protection of property.

Sentence must nevertheless reflect the individual circumstances of an exceptional case. Extreme and immediate provocation arising from a terrifying armed burglary, the offender’s previous good character, and the continuing effects of the crime on the victim of that burglary may justify substantial mercy. Different participants must be sentenced according to their respective provocation and involvement.

Munir Hussain and his brother, Tokeer Hussain, were convicted at the Crown Court at Reading of causing grievous bodily harm with intent after Walid Salem, one of a gang that had carried out an armed burglary at Munir Hussain’s home, was pursued and seriously beaten.

Tokeer Hussain challenged his conviction on identification evidence. Munir Hussain contended that there was no case to answer and that the conviction was unsafe. Both men appealed their immediate custodial sentences. The central sentencing issue was the effect of the exceptional provocation and trauma caused by the burglary after the danger had ended.

1. Convictions. The court granted Tokeer Hussain leave to appeal but dismissed his appeal. There was ample evidence for the jury, notwithstanding the difficulties in the eyewitness identification. The evidence included the later correct identification, the appellant’s conduct and apology, the 999 call, and supporting circumstantial evidence. Munir Hussain was refused leave to appeal. The bloodstaining on his clothing, his inconsistent accounts, and the other evidence plainly entitled the jury to decide his participation. The court had no lurking doubt about either conviction.
2. Character of the violence. Once Salem was lying defenceless on the ground, the burglary had ended and nobody was in danger. The sustained group attack with weapons was motivated by revenge. It was neither self-defence nor defence of family, home or property, and was not force used to detain Salem for the police. The convictions under Offences against the Person Act 1861 therefore stood.
3. Sentence. The ordinary seriousness of group violence causing grave injury would require substantial imprisonment. This was, however, highly exceptional. Munir Hussain had reacted in hot blood immediately after an armed and terrifying invasion of his home. He had feared for his family, suffered continuing trauma, and was a man of exemplary character. Tokeer Hussain had also acted in the immediate aftermath, but had endured materially less provocation and was not himself a victim of the burglary. Sentencing guidelines could not exhaustively determine such circumstances; justice and mercy had to be balanced.
4. Orders. The sentence appeals were allowed. Munir Hussain’s sentence was reduced to 12 months’ imprisonment, suspended for two years, with a two-year supervision requirement. Tokeer Hussain’s sentence was reduced to two years’ immediate imprisonment.

1. Court of Appeal (Criminal Division). In [2010] EWCA Crim 94, Tokeer Hussain’s conviction appeal was dismissed after leave was granted, and Munir Hussain was refused leave to appeal against conviction. Both appeals against sentence were allowed and the sentences were reduced.
2. Crown Court at Reading. Before Judge Reddihough and a jury, both appellants were convicted on 10 September 2009 of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. On 14 December 2009, Munir Hussain received two years and six months’ imprisonment and Tokeer Hussain received three years and three months’ imprisonment.