Hussain & Anor, R. v

Neutral Citation Number: [2010] EWCA Crim 94 IN THE COURT OF APPEAL CRIMINAL DIVISION Case Nos. 2009/05324/B1, 2009/05555/B1 Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 20 January 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (Lord Judge) MRS JUSTICE SWIFT DBE and MR JUSTICE SWEENEY - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - TOKEER HUSSAIN MUNIR HUSSAIN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G Grenfell and Mr S Rashid appeared on behalf of the Applicant Tokeer Hussain Mr M Wolkind QC and Mr R Shah appeared on behalf of the Applicant Munir Hussain Mr J Price appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T THE LORD CHIEF JUSTICE: 1. Yesterday we heard applications for leave to appeal against conviction by Munir Hussain and Tokeer Hussain following their convictions in the Crown Court at Reading before His Honour Judge Reddihough and a jury on 10 September 2009 for causing grievous bodily harm to Walid Salem with intent, contrary to section 18 of the Offences against the Person Act 1861. Having heard the argument, we allowed the application by Tokeer Hussain but dismissed the appeal. We refused the application for leave to appeal by Munir Hussain. 2. On 14 December 2009 Munir Hussain was sentenced to two years and six months' imprisonment. Tokeer Hussain was sentenced to three years and three months' imprisonment. Yesterday we considered their applications for leave to appeal against sentence. We granted leave to appeal and we now give our judgment. 3. It is not in dispute that Walid Salem was subjected to a very serious attack by four men during the night of 3 September 2008 in Desborough Park Road, High Wycombe. Both appellants denied that they were involved in that violence. That was the only issue at trial. No one suggested that if either man was found to have been part of the attacking group, he should be acquitted. The trial had nothing to do with the rights of the householder to defend himself or his family or his home. The burglary which we shall describe was over. The burglars had left. No one was in any danger from them. 4. The appeals against conviction were founded on the judge's conclusion that the prosecution had established that there was a case against each of the appellants to answer. It was submitted that that decision was wrong. We were also invited to consider whether this was a case for the application of the Cooper principle, namely whether the court was left with any "lurking doubt" about the correctness of the conviction. 5. The background facts are these. Munir Hussain lived at 28 Desborough Park Road with his wife Shaheen, their two sons Awais (aged 21) and Samad (aged 15), and their daughter Arooj (aged 18). Tokeer Hussain is Munir's brother. He lived with his family up the road at 20 Desborough Park Road. 6. Walid Salem is 56 years old. He lived in Borehamwood. He was a professional criminal. He had a long record for serious criminal convictions. By contrast, Munir Hussain is 53 years old and Tokeer Hussain is 35 years old. They were both men of impeccable, positive good character. 7. On the night of 3 September 2008 Salem travelled with at least two other men to 28 Desborough Park Road. They disguised themselves with masks or balaclavas. They were armed with knives. They carried a large number of cable ties. This was a planned burglary by a gang of armed men. It is apparent that they deliberately selected the address at 28 Desborough Park Road. When they arrived they disabled the security lights at the property and waited for the return of Munir Hussain. He was attending prayers at the nearby Mosque. He was accompanied by his two sons. It was the third day of Ramadam. In the meantime, his wife and daughter were going about their business in their home. 8. Munir Hussain and his sons returned home just before 11pm. They went to the back door. Shaheen opened it to them. As the three made their way into their home, they were ambushed by a man who wore a balaclava and brandished a large knife. The armed man was joined by at least two other men who also carried knives. They threatened Munir Hussain and his sons with their knives and bundled them into the house. Munir and Awais were pushed to the floor. Samad, with considerable fortitude, dashed out of the kitchen and upstairs. Shaheen was also pushed to the floor. The three on the floor were ordered to lie facing the ground. They were threatened that they should not move or they would be killed. This was said more than once by more than one of the burglars. Whenever Munir Hussain tried to turn his head sideways to see SMITH BERNAL WORDWAVE what was happening, he was ordered to keep his head down or they would be killed. 9. Munir's daughter, Arooj, had started to get ready for bed when she heard the noise of this incursion into her home. She left her room. She encountered her younger brother, Samad, running upstairs. He tried to convey to her that she should telephone the police, but she did not understand him. She went straight downstairs. Her first sight in the hallway was of a man in a balaclava. He held what seemed to be a wrench, although it was almost certainly a knife, which he was waving in the air. Her mother, her father and her older brother were lying face down on the ground with their arms spread out. Arooj was ordered to lie face down on the floor and place her hands behind her back, which she did. She lay down beside her mother. She could hear her mother crying. She, too, started to cry. 10. In the meantime, Samad had made a telephone call to the police. We have a transcript of the 999 call. He reported that there was a robbery in progress at 28 Desborough Park Road. He spoke rapidly. He said: "Three black men have a knife and my parents and my brother -- THE OPERATOR: Where is this taking place? SAMAD: They just broke in. They just pushed us with knives out our way. We just got home in the car and we got out of the car and they got knives on us. They were waiting outside for us". 11. Meanwhile, something of a panic had developed among the burglars. Two of them had gone upstairs to find Samad. However, Samad had made his way out of the house. Indeed, as the telephone was connected to the police the transcript shows him saying in terms, "I'm just running, running to my cousin's house now". That was to number 20 Desborough Park Road, the home of Tokeer Hussain. 12. Munir Hussain was desperate with worry about his wife and daughter. He thought that they would be raped and then that they would all be killed. He was worried, too, about Samad because he could hear the footsteps of one or more of the burglars upstairs, but no noise from his son at all. He did not know that Samad had fled the home by climbing out of the bedroom window onto a conservatory roof, down to the ground, and made his way to No 20. 13. As the burglars searched for Samad, they left Walid Salem to guard the rest of the family. Gradually Munir Hussain came to appreciate that there was only one burglar left guarding them, standing over his wife and daughter. He thought that the only way to save them all from whatever fate might lie ahead was to distract the burglar and then if possible to make a run for it and find help. He seized hold of a small, lightweight table and threw it at Walid Salem. It struck him in the chest. Munir was able to make his escape. 14. Awais, hearing his father's actions, grabbed hold of Walid Salem, punched him in the face and head, and pulled his balaclava which came off and fell to the ground. Walid Salem dashed out of the house. The other intruders made their escape. They disappeared and, as far as we are aware, have not been traced. SMITH BERNAL WORDWAVE 15. In the meantime, Samad made his uncle and family aware of what had happened. At that stage they believed that Munir Hussain and his family were still captured by the burglars. In the transcript of the telephone call it is apparent that some of those at No 20 armed themselves with cricket bats and other objects. Samad said to the police that his uncles were "already here, they're just waiting". The noise developed so that the police could tell that something was going on. Indeed Samad was told to tell everybody to stop running around. 16. Walid Salem was seen and chased by a group of Asian men, including Munir Hussain, who was the last in the line of those chasing. Within moments Walid Salem was brought to the ground. He was completely defenceless. He was then attacked by this group who used a variety of weapons on him, including a cricket bat and some kind of pole. 17. The result of the attack on Walid Salem was that he suffered very serious injuries. They included a fracture of the skull, with consequent brain injury, and fractures to his ribs, his jaw, his elbow and a finger. He has now recovered from his physical injuries. Indeed, he has been involved in further crime. However, because of his brain injury he was found unfit to plead for the crimes he committed against Munir Hussain and his family and unfit to plead to his subsequent criminal activity. 18. The issue in the appeal against conviction was whether the appellants, or either of them was one of the attacking group. 19. The case for the prosecution did not involve even the tiniest suggestion that anything that happened in the home of Munir Hussain amounted to a crime by anyone other than Walid Salem and his accomplices. The allegation was that while Walid Salem lay defenceless on the ground, he was subjected to extremes of violence which had nothing whatever to do with self- defence. It represented retaliation or revenge for the actions of the burglars that evening. 20. We shall deal first with the appeal of Tokeer Hussain. Although there were a number of strands to the prosecution case against Munir Hussain, the crucial evidence against Tokeer Hussain came from the occupant of the ground floor flat at 9 Desborough Park Road, which is a very short distance from No 28 and almost directly opposite No 20. The attack on Walid Salem took place in the front garden of No 9. Hearing the commotion, Miss McLoughlin opened and looked out of her sitting room window. She did not put on the lights in her room. The only light at the scene was street lighting, which some witnesses described as "dim" or "dark". Miss McLoughlin said that four men were involved in the attack. Some were using weapons. She identified Tokeer Hussain as one of the assailants. According to her evidence, she identified him when, as she looked out of her window, he broke off the attack to apologise to her for what was going on. She accepted that when he did this he was polite and courteous. As she understood him, he said that the man on the ground had broken into his home and had attacked his family. Having explained himself in this way, he then returned to the attack. Despite Miss McLoughlin's belief that the incident occurred over a long period of time, it was not prolonged. In answer to the 999 call the police arrived at the scene. According to Miss McLoughlin's evidence, the man with whom she had had this conversation waited for a while on his own and, when the police arrived, attracted their attention. He then left he scene. Later he returned and spoke to Miss McLoughlin and apologised again, although by now he had changed from the white shalwar top he had been wearing during the attack and now wore a dark top. About 40 minutes later she saw the same man taken away by the police. SMITH BERNAL WORDWAVE 21. There is no doubt that the last identification was wrong. The man Miss McLoughlin saw taken away by the police was Munir Hussain. However, at a properly conducted identification parade four or five days later, at the parade in which Tokeer took part, she positively identified him as one of the men involved in the attack. It is right to record that at each of the separate parades involving Munir and his son Awais, Miss McLoughlin made positive identifications of individuals who were volunteers. Therefore the positive identification of Tokeer Hussain was not an entirely straightforward issue. To this complication must be added that, although Tokeer had said nothing in his police interviews, by the time the case was ready for trial he acknowledged that he had spoken directly to Miss McLoughlin after the attack was over. In other words, she was undoubtedly right about her identification of Tokeer on at least the second occasion. The question was whether the identification was sufficient to identify the man who spoke to her while the attack was taking place. She said that it was the same man. 22. The conversation on the second occasion, when there is no dispute that it was Tokeer who spoke to Miss McLoughlin, is revealing. According to her evidence, he said that he was "really sorry" for what had happened. He apologised for what had happened. Her evidence continued: ".... he talked about his family again, and that he lived down the road." She was not sure if he said No 20 or No 28, although if it was Tokeer Hussain it must have been No 20. She was asked if anything of significance was said that she could remember. She said: "... no, literally just going through talking about the guy who had broken into his house, there was someone with him, who threatened his family." She was asked what she had said. She said: "I literally told him it does not justify his actions." His reaction to her was not to deny that he had been involved but to apologise again. A few moments later he left. 23. Our attention was drawn to a number of criticisms of Miss McLoughlin's evidence. It is said that her evidence was inconsistent with that of police officers. Thus, for example, she said that when the police arrived the man was standing on his own. The officers gave different evidence. They said that when they arrived in her garden (and they, too, gave different accounts) there were still three or four men there, or four or five men there, who included two men who were restraining the man on the floor. This is an example of a fast-moving scene. SMITH BERNAL WORDWAVE 24. The second feature is that Miss McLoughlin said that she believed that the man in her garden had attracted the attention of the police. The officers said that they had been flagged down by a young Asian male (who on any view could not have been Tokeer Hussain). 25. The fact that a young Asian male attracted the attention of the police did not mean that, whether he was successful or not, the man in Miss McLoughlin's garden had not done so or appeared to do so. 26. Next, there is the issue of the departure of the man when the police arrived, and his later return. Miss McLoughlin described the change of clothing from the bloodstained white top when he left the scene to the dark (or black) top. A police officer described a man with a bloodstained white top leaving the scene and returning later. But this man, according to the police officer, was wearing a white T-shirt and blue jeans. In other words, it is contended that Miss McLoughlin at No 9 and the police officer at the scene both saw a man with a bloodstained white top leaving the scene and returning later. However, if the officer's description is correct, they were describing someone quite different. This is to be seen in the context of evidence given by witnesses for the prosecution: Munir Hussain's wife and Samad Hussain, who both gave evidence that Tokeer Hussain never wore traditional clothing. 27. We have considered the various submissions made to us yesterday. The more we reflected upon them, the more obvious it was that these were issues which, if the case should go to the jury, were issues for resolution by the jury. On the evidence this was not a "fleeting identification" case. It was a positive identification in poor quality or difficult circumstances. Because of the difficult features about the evidence of the witness, when he considered whether there was a case to answer, the judge rightly decided to look into the question whether there was some evidence independent of the identifying witness which suggested that her identification on the ID parade was correct. The judge accepted the Crown's submission, based on the evidence, that the possible candidates for participation in the assault could be narrowed down to those who lived at numbers 20, and 28, and to three or four of them, specifically on the basis both of motivation and appearance. This view was entirely consistent with the 999 call made by Samad to which we have earlier referred: "My uncles are already here, they're just waiting". That was in the context of the carrying of weapons. Although it is true the term "uncle" may have a wider use in some parts of our community than in others, on any view "uncle" would certainly have included Tokeer Hussain. 28. After the incident was over, during the course of their investigation the police found implements similar to those used in the attack in and about No 20, which were not in an ordinary or normal place for such objects to be kept. It is also the case that after his arrest, Tokeer Hussain declined to answer any questions. 29. The second area of support found by the judge was in the fact that Miss McLoughlin had identified Tokeer Hussain as the man who spoke to her after the trouble was over and the police had arrived and that this was undoubtedly a correct identification. The judge took note, too, as do we, of the circumstances of the apology, the attempts to describe why the incident had happened, the absence of challenge when it was put to him that he was involved in the attack, and the fact that Tokeer did not demur or suggest that this was something which had involved others but excluded him. In our judgment, therefore, there was ample evidence to justify the judge's decision that the case should be left to the jury. SMITH BERNAL WORDWAVE 30. The appellant Tokeer gave evidence. He called witnesses in particular to deal with the issue of the clothing he was inclined to wear and his habit not to wear traditional clothes. All these matters were placed before the jury in an impeccable summing-up in which appropriate warnings were given to them about the possible dangers of identification in circumstances of difficulty. All the issues were sufficiently ventilated before the jury. The jury was satisfied to the criminal standard that Tokeer Hussain was one of the assailants. We do not entertain any doubt for interfering with that verdict on the basis of the Cooper principle. 31. We next deal briefly with Munir's application for leave to appeal against conviction. The foundation for the submissions of Mr Michael Wolkind QC was that Miss McLoughlin, the eye- witness at the scene, positively excluded Munir Hussain. The Crown's submission to the judge and then to the jury was that that her evidence that Munir Hussain was not one of the four assailants was wrong. The basis for the assertion was evidence that his clothing was heavily stained with Walid Salem's blood. His blood was found in heavy concentrations on both arms and the very bottom of Munir Hussain's right trouser leg. Moreover, the staining on both arms included contact staining and airborne staining. The bloodstains on the cuffs were contact stains and the stains higher up on the sleeves were airborne stains. That provided very powerful evidence indeed that Munir Hussain was directly involved in the attack and that Miss McLoughlin was wrong. 32. The significance of the bloodstaining on Munir Hussain's clothing was reinforced in a number of ways. Before his arrest, Munir Hussain gave three accounts of the incident to two paramedics and to one police officer. He spoke of chasing Walid Salem down Desborough Park Road in the direction of the garden where he was attacked. During that incident he used some justifiable violence with a weapon, but then they had both fallen over a fence. There was no group attack. This was one-on-one. All of this was inconsistent not only with the reality that there was indeed a group attack, but with eye-witness evidence that he was seen to be a member of the group that chased Walid Salem down the road. There was ample evidence supporting the eye-witness that the attack was indeed a group attack. 33. Following his arrest, when the evidence became apparent, the account given by Munir Hussain to the police changed and he asserted that once they had left the house he was chased by Walid Salem. He then started to run a new story about the unexpected arrival on the scene of four unknown men of Asian origin in a silver car, so as to suggest that these unknown men were the assailants. It was part of his admissions that he had removed Walid Salem's wallet from his pocket as he lay on the ground. In any event, adding these differing explanations and accounts from him, and setting them against the other evidence, including the evidence by the eye- witness, the unchallenged evidence of the bloodstaining from Walid Salem found on Munir Hussain's clothing, the exculpatory evidence given by the eye-witness, did not for one moment lead to the conclusion that there was no case for him to answer. Indeed, in our judgment, if the judge had withdrawn the case at that stage, he would have been usurping the function of the jury. He was right not to do so. As with Tokeer Hussain, the summing-up was impeccable. All appropriate directions were given. We see no reason whatever to apply the "lurking doubt" principle in this case any more than we do in the case of Tokeer Hussain. 34. We turn to the appeals against sentence. The combination of events which culminated in the serious injuries sustained by Walid Salem is highly unusual. By the time he was lying defenceless on the ground, none of his assailants was acting in self-defence or in Munir Hussain's case in defence of his wife, of his children, of himself, or of his home. This is not, SMITH BERNAL WORDWAVE and should not be seen as, a case about the level of violence which a householder may lawfully and justifiably use on a burglar. It is also clear that the violence to which Walid Salem was subjected was not designed to ensure that he would be detained, pending the arrival of the police, to be handed over to them. The burglary was over. No one was in any danger. The purpose of the appellants' violence was revenge: to teach at least one of the burglars a lesson. It was a sustained attack with weapons. The pleas of the eye-witness to desist were ignored. Such violence is not lawful. No one at trial suggested it was. That is why, after a careful summing- up by the judge, the jury convicted those they were sure had participated in the violence. They were unable to agree in the case of one other co-defendant. 35. The further striking feature of this case is that the consideration common to most revenge attacks is missing. 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. 36. Tokeer Hussain was under some stress, but not of the same level of intensity. His involvement began with the arrival of Samad at his home with news of what was going on at his brother's home. The weapons were seized for use in what would, if it had happened, have been a legitimate effort to rescue his brother and his family. However, the crisis had come to an end and a rescue motive converted into a desire for revenge on at least one of the men who had broken into his brother's home. 37. Munir Hussain and Tokeer arrived at the scene by different routes and took part in the violence after they had been subjected to different pressures. They must, therefore, be dealt with differently. They were foolish to contest their guilt. An early guilty plea would have made the task of their advocates in mitigation so much easier. On the jury's verdict, they had participated in a very serious attack. It is worth underlining that, in the majority of cases where public violence by a gang produces injuries as series as these, very lengthy prison sentences are required. Indeed it is the kind of mob violence which normally arouses great public concern. However, as we have emphasised, this is not an ordinary or normal case, nor even one which falls within the overwhelming majority of cases, not least because of the character of the two appellants. SMITH BERNAL WORDWAVE 38. Munir Hussain is aged 53. He is a hard-working, peaceful, dedicated family man who makes a positive contribution to the community as a whole, irrespective of racial origins, with positive commitment to racial equality and racial diversity. All this work is voluntary, carried out without reward in the very limited time available to him because he has built up and runs a successful small business in High Wycombe which depends on him and his brother. 39. Tokeer Hussain is aged 35. He has similar characteristics of hard work in the business. There is an increasing interest in him of making a contribution to community life, although he has not yet achieved the laudable record of his much older brother. 40. It is rare to see men of the quality of the two appellants in court for offences of serious violence. There is this further distinction between the two bothers. Unlike Munir, Tokeer has not had to come to terms with the crime of which he was the victim. In a carefully prepared report dated 25 November 2009 (a year after the incident), a Consultant Forensic Psychiatrist, Dr Joseph, sets out Munir Hussain's descriptions of symptoms suggestive of post-traumatic stress disorder. For example, he experiences intrusive memories of the traumatic event when he is awake. He suffers nightmares which wake him. He is hyper-vigilant and more easily startled. He feels anxious and has difficulty in sleeping. He also has some depressive symptoms, in particular guilt at failing to protect his family adequately. He worries about his family, who in turn have suffered a traumatic reaction to the events of that night. None of that comes as any surprise. The doctor recommends continued medication and supervision. He adds that it will take Munir Hussain a number of years fully to recover from this traumatic event. 41. Apart from any other considerations, therefore, Munir Hussain will have to live with the consequences of the crime of which he and his family were the victims. Moreover, there is a further problem. Shortly before he was sentenced a letter was received by Munir Hussain from the Thames Valley Police reviewing information which indicated to him that he might be at risk of harm. The letter, which is signed by a superintendent, says: "I have reviewed his information and have decided that it is in your best interests to be made aware of this risk so that you may be able to take steps to avoid it and we may put other protective measures in place if necessary." Unsurprisingly, Munir Hussain is troubled about the short and the long-term safety of his family for which, as the head of the family, he feels responsible. 42. In summary, Munir Hussain still endures the baleful consequences of the events of that night in September 2008 and they will be with him for some time yet. He was the victim of a very serious criminal offence. His own violent actions shortly afterwards have not diminished the impacts of the crime on him. 43. Even allowing for all the provocation, Munir Hussain and Tokeer Hussain were rightly prosecuted. The verdict of the jury must be respected. This level of violence was unlawful. However, the principle that concerned the judge that nobody can take the law into their own hands and administer revenge punishment has been vindicated. We have considered the sentencing guidelines applicable to offences of violence. Indeed, we have referred to the SMITH BERNAL WORDWAVE guidelines in relation to homicide committed in circumstances of provocation. There are some situations which guidelines cannot and do not cover. This is one of them. 44. Today, as ever, the sentence of the court must address and balance the ancient principles of justice and mercy. In this case the call for a merciful sentence is intense. As we have emphasised, in the normal way group violence of this kind which produces serious injuries, even if the product of a real grievance, must result in substantial sentences of imprisonment. However, taking each of the appellants in their different positions, we consider that the call for mercy must be answered to this extent. We shall reduce each of the sentences on the Tokeer Hussain to two years' imprisonment, which in the normal context would represent a merciful sentence. The sentence will be effective immediately. He was not the victim of any crime. He will not have to live with the consequences of the crime, and he was not subjected to the same intensity of provocation and emotional anguish as his brother. 45. For the reasons we have explained, the case of Munir Hussain is one of true exceptionality. In the circumstances which we have endeavoured to explain in this judgment, we have come to the conclusion that we have ample justification for ordering that the sentence on him should be suspended. Accordingly, the sentence will be twelve months' imprisonment suspended for two years with a two year supervision requirement. 46. In these circumstances the appeals against sentence are allowed. The sentence on Munir Hussain will be reduced to twelve months' imprisonment suspended for two years. The sentence on Tokeer Hussain will be reduced from three years and three months' imprisonment to two years' imprisonment. SMITH BERNAL WORDWAVE