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. 

ONE LAW FOR THEM.........?

There were about 524,000 summonses for motoring offences last year.  Those who plead not guilty by post are summonsed to attend for trial.  For those who notify the court that the proposed date is unsuitable and indicate any future unsuitable date eg for pre booked holiday, an adjournment will  usually be granted.  Well; that`s the usual procedure.  The purpose is to pursue speedy, simple, summary justice.  But if you`re a famous cricketer it seems more favourable terms can be declared.  In this case, from the limited report,  it appears that the defendant   is doing the court a favour.  One law for them............?  And what are the odds that a District Judge will be allocated this case when it does eventually come to trial?

WE FORTUNATE FEW

It`s often said that we who sit in the lower courts  see before us the stupid ones; those who need lessons in how to shoplift efficiently, fail to wear gloves when trying car door handles, swear  once too often at police officers and think speed cameras are all empty boxes.  However some are simply people who fail or cannot connect to society; who for myriad reasons are outcasts.  One would be lacking in simple humanity if a certain degree of sympathy did not intrude into the sentencing process irrespective of Guidelines which newer colleagues can sometimes  tend to consider as sacrosanct. 

Recently we had before us a youth of nineteen of previous good character who had pleaded guilty to possession of cannabis with intent to supply.  His demeanour in the dock spoke loudly.  He was about 5ft 6inches and pitifully thin.  Wearing a slightly grey white shirt he stood with his shoulders hunched   looking at his feet.  His replies to the L/A were so inaudible that we had to ask him twice to speak up.  In his mitigation his advocate told us that although he was arrested with fourteen wraps he had not sold drugs:  he had given quantities to “friends” in order to buy their companionship.  His life history to date, he added, was such that it was remarkable that he was not now in a very much worse state of being.  We retired.  He received the pronouncement of twenty seven hours at an attendance centre with barely a flicker.  We who are generally fortunate to have grown up and flourished in the rich soil of our friends, colleagues and families are from time to time reminded from our privileged positions that there are so many not so fortunate.  For some it`s a dog`s life.  

IT BEGGERS BELIEF!

Well!  How would you deal with this and dozens of similar cases every month?

LAW, EMOTION AND RESIGNATION

When sitting  at the building where all matters except trials are conducted my colleagues and I generally enjoy the experience where we can be fully occupied with overnights, remands,  first appearances, breaches and sentencing.   With invariably a high number of cases at each such sitting I personally leave feeling a combination of being depressed when the detritus of humanity has to go through the criminal justice system instead of being diverted to institutions where their addictions can be treated, satisfied when judgement and/or insight has succeeded in isolating a previously unacknowledged significant  fact, smug when correcting an all too bloated arrogant lawyer and disturbed when the application of the law seems unjust in a particular case.   

The last case at just such a sitting left me disturbed.  Cheating the Benefits Agency is taking tax payers money by fraud.  Sometimes the offenders are beneath contempt in their efforts to receive what they don`t deserve but for a small minority pity is the emotion which can stem the hand of the sentencer.  This country has seen an influx of immigrants over the last decade and some of the females in this group, especially those from Asia or Africa with little spoken English, are easy prey for unscrupulous men.  The actual case in which we sentenced outside the Guidelines involved such a woman with two very young children and a so called husband who used her for his own ends.  With their consent we used certain provisions;  provisions  that Probation would normally consider unavailable in the circumstances,  to assist the offender.  Some cases involving   school non attendance   also involve the application of laws which are perhaps insensitive to individual circumstances but if a J.P. cannot apply the law as it is and not as s/he would want it the answer is resignation.