Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.




Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Tuesday, 26 August 2014

A LAW WITH UNINTENDED CONSEQUENCES



Domestic violence is a descriptive term; it is not a crime.  Domestic abuse is a descriptive term; it is not a crime.  Common Assault is a crime. There are clearly cogent arguments that actions which constitute the former  description could be clarified in legislation.  It would not be unreasonable for parliament to take such an approach.  The current position of defining assault in a domestic context leaves loose ends.  One person`s  domestic context is not necessarily another`s.  I remember  many years ago  sitting on a bench which was advised that assault involving two “distant”  brothers-in-law sharing with their families a very large house was to be considered a “domestic”.  I disagreed in principle and  my opinion was reflected in our sentencing of the guilty defendant.  

My colleagues,  and I suspect,  most lawyers are well aware of the problems when such cases are often “s/he did”: “no I didn`t.”  Often photographs taken by the officers called to the scene are instrumental in a bench`s conclusion of guilt.  With  proposals from Theresa May that emotional abuse could be construed as domestic violence the law IMHO is going where it has no right of way.  Couples  within an intimate relationship which was  the originally defined situation and which excludes many existing “domestic” relationships   eg parent/child, sibling/sibling etc etc  are always subject to emotional variations; it is the human condition.  To legislate name calling as an offence means that a tribunal of J.P.s or a District Judge(MC) must be sure beyond reasonable doubt that harm has been caused by a defendant to a complainant.  In the normal context of harm this will be almost impossible.  Of course proponents of such proposals will retort that controlling or insulting behaviour can cause mental health problems of one kind or another.   That indeed might be true in some cases but can such trauma be shown in a court of law to have reached the threshold whereby a finding of guilt can be made?  I would posit that such legislation would inevitably be subject to the law of unintended consequences and would cause more problems than it would solve. 

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