Bruce Anderson: Hard cases make bad sentences

The British legal system faces two threats. The first arises from thoughtless populism: the second from high-minded naïveté. The dangers of populism are exemplified by the case of Munir and Tokeer Hussain, the businessmen who have been imprisoned for using a cricket bat to beat the bejasus out of a professional criminal who had invaded Munir Hussain's home and threatened his family.

We can all sympathise with the Hussains, who appear to be exemplary fellows, as opposed to the dregs of humanity involved in the robbery. Had I been on the jury, I would have strained my eloquence to secure an acquittal, going so far as to suggest that we award the defendants a new cricket bat out of public funds. That is what juries are for. Very occasionally, it is necessary to override the law in the interests of justice.

Much more often, it is necessary to uphold the law in the interests of justice. That is what judges are for, and the judge in this case had a difficult task. There is a right of self-defence; there is no right of hot pursuit. The fleeing criminal who is no longer a danger should be left to the police. That is the law, and the gospel of perfection. In the absence of perfection and of the police, we have a householder who has been tied up and menaced, who has seen his wife and daughter tied up and menaced, who has felt fear, humiliation and fury. He would have been in a red haze of rage, and who could blame him – or his brother, for joining in?

In assessing offences such as breach of the peace, English law relies on common sense. It does not ask itself how a saint would behave, but how the man on the Clapham omnibus would behave. We suspect that the bloke on the bus much admires the Hussains, hopes that in similar circumstances, he would have the guts to do likewise, and thinks that they deserve a medal.

Yet we are not dealing with any old breach of the peace. The judge had to pass sentence on the basis of a conviction for grievous bodily harm, a serious offence. As GBH sentences go, he was lenient. Those of us who believe that he was insufficiently lenient have to ask ourselves whether we really want to encourage householders to chase criminals and batter them senseless. Unlike his critics, the judge had to think the matter through and ought not to be the butt of thoughtless criticism.

That does not rule out thoughtful disagreement. Good men are now in prison, wondering what sort of a country it is, where if the criminals do not destroy you, the courts will. An admirable family which has already suffered has had hot coals heaped on its distress – and the public feels that its lack of confidence in the criminal justice system has been vindicated. To paraphrase the old legal adage, hard cases make bad sentences.

With the greatest respect to Judge Reddihough, these were the wrong sentences. It is to be hoped that a higher court will rapidly substitute suspended sentences and that if this would take time, the Hussains could be released on bail. This is the season of mercy and redemption. As breaches of political correctness are not yet a crime, we can all hope that the Hussain brothers are home in time for Christmas.

Despite Portia, mercy is not enough. If mercy were granted, the Court of Appeal should also make it clear that this leniency was an exceptional concession in unusual circumstances and that there are no legal grounds for turning defence into attack.

It may be that the law on self-defence requires clarification. The Shadow Home Secretary, Chris Grayling, has argued that those assailed by criminals should only be prosecuted if their actions in self-defence were "grossly disproportionate". That sounds reasonable, but it would probably not have spared the Hussains from prosecution. We can understand why they behaved as they did, in hot blood, charged up with adrenalin. But there can be no general right to act in that way. It would be thoughtless populism to claim otherwise.

That said, we should not be too hard on thoughtless populism, which is often the honest-to-God reaction of decent people who are appalled at what is happening to their country and the apparent inability of those notionally in charge to do anything about it.

This is infinitely preferable to the high-minded naïveté which manifested itself in the case of Tzipi Livni, the former Israeli minister who felt unable to come to Britain because a warrant had been issued for her arrest. What nonsense: what a disgrace that this should happen in a supposedly serious country. David Miliband is no stranger to high-mindedness. His general demeanour is no refutation of the charge of naivete. On this matter, however, he behaved admirably and was clearly – and rightly – unable to contain his exasperation.

It was unfortunate that the Livni affair should coincide with the theft of the Arbeit Macht Frei inscription from Auschwitz. Its diabolic cynicism surely makes it the single most potent testament to evil in the entire world. The imbecilic magistrates who issued the warrant against Mrs Livni had nothing to do with all that. Nor is there any reason to suppose that they were motivated by anti-semitism. But plenty of Israelis will link the two events, as evidence that old Europe is still infected with anti-semitism and with a desire to do down Israel.

A pessimist might say that this hardly matters, because Europe has no influence on a virtually non-existent Middle East peace process. But David Miliband still has hopes of the life-support machine, so it is understandable that he should resent a fatuous intervention which makes his impossible task even harder.

Even so, the Government is to blame. At the beginning of the decade, without thinking through the consequences, it passed the International Criminal Court Act. This nebulous piece of legislation seems to allow anyone with a political grievance against anyone else, anywhere in the world, to apply for a warrant in a British court. This subverts any notion of jurisdictions; it also subverts any viable notion of the rule of law.

There is a moral in all this. Law requires hard-thinking lawyers, reinforced by tough-minded politicians who will help them to resist both populism and naïveté. Merry Christmas.