'If a thief is caught breaking in and is struck so that he dies, the defender is not guilty of bloodshed; but if it happens after sunrise, he is guilty of bloodshed.' (Exodus 22:2-3)

There has been outrage in the media after Munir Hussain and his brother Tokeer were jailed for 30 and 39 months respectively after they gave chase to and caused permanent brain damage to one of a group of intruders who attacked Munir and his family at knife-point in their home.

One paper insisted, 'What the public demands is a clear law offering immunity to householders who act against intruders,' while a commentator in Britain's best-selling newspaper 'helpfully' opined, 'Personally, I would have raised my arms to the heavens, thanked my lucky stars and then slowly reversed my car over him... until there was just enough left for the cat to lap up.'

The problem is, at first glance, it does seem a topsy-turvy judgement: the intruder, who had 50 previous criminal convictions, remains free under a two-year supervision order, while those who were initially his victim are imprisoned. However, the fact is, as another of the papers said of Hussain, in a wonderful instance of classic British understatement, 'it seems pretty plain that he could have used rather less force than he did to detain the man who tied up and threatened his family.'

Another newspaper columnist more reasonably suggested that the Hussain case is not so much a legal problem about the rights of victims to use force, but rather a moral problem and a police problem over the far greater number of people 'going around now who are prepared to stop at nothing ... the chief problem isn't the rights of victims, it's the number of perpetrators.'

For, Mr Hussain is not 'innocent' as some suggest and the judge has not 'announced to the world that it's open season for every bam, ned, burglar, kidnapper and mugger.' The judgement does not mean that, 'if attacked you are just meant to take it and not fight back.' The 1967 Criminal Law Act already permits the use of 'proportionate, reasonable force' to apprehend suspects. Striking an intruder who is attacking someone in their own home to make them stop, as 70-year-old Patricia Hendry was recently rewarded for doing, is one thing; chasing them down the street, together with friends wielding weapons including a metal pole and striking them with a cricket bat so hard that it breaks into three pieces is more than just self-defence. As evident in the quote above from Exodus, Old Testament law permitted self-defence, but set reasonable limits to the actions that a home-owner could take.

The shadow home secretary Chris Grayling says he wants a review to see whether the bar should be moved so people are only prosecuted in cases where their actions are judged to have been 'grossly disproportionate'. Ireland, for instance, is about to change its laws on self-defence, giving people the right to use force, including lethal force, against attack in their homes if they believe they will be the victim of murder, rape, or kidnapping. However, although Grayling is right to be concerned that almost one in three violent crimes (31 per cent) dealt with by the police results only in a caution, Munir Hussain's actions would still, presumably, be classed as 'grossly disproportionate'.

The question we need to address with regards Hussain is not whether he is guilty of a 'grossly disproportionate' response, but whether imprisonment is really the most appropriate punishment for his crime. As we have suggested previously, what is needed is not a review of a single piece of legislation but a complete revision of our concept of criminal justice.

See also our Cambridge Paper An eye for an eye? the morality of punishment

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