Law and the mainstream media – domestic violence

I know that lawyers are sometimes guilty of focusing primarily on legal aspects at the expense of other parts of a story. It’s partly the way we’re brought up. The isolation of the lawyer begins at University with an encouragement at some institutions to corrall the lawyers into one building far away from the influence of others, while the law students follow a programme of courses which does not involve any interaction with anyone from outwith the law school. Then afterwards the law is perceived by non-lawyers – even among extremely well educated intelligent deep-thinking non-lawyers – as something other: an obstruction to what people want to do, or a facilitator. And accompanying that perception is some notion that law is difficult, a closed issue for the lawyers to think about and discuss. But law is crucial to our lives. Although we might not be conscious of it at all times, law reaches into every aspect of our lives – from birth to grave and beyond, from the simplest transaction (buying a pint of milk in the shop) to the highly complex (business takeovers with their impact on thousands of employees, their pensions, the premises, and the like). Law can be intensely political. Law can be mundane. But a lack of awareness never mind knowledge of much law is commonplace – and that lack of awareness and knowledge is then accompanied by a lack of awareness and knowledge of the big issues that go alongside it: meaning that our media, and our citizens, cannot properly engage with the political arguments sometimes put forward. In recent months on this blog I have discussed a couple of big issues where that has been the case: the incompetence of Nick Robinson and the political journalists in scrutinising the nonsensical Conservative party policies on human rights; and the debate on the legislative competence of the referendum bill proposed by the Scottish National Party (here, here, and here) where the lack of awareness of the devolution framework means that the mechanism, potentially the ultimate approach to a referendum (or referendums), remains unscrutinised.

These are big questions, political questions, where the lack of knowledge and awareness of the media seems inexcusable – given the fundamental importance of the area.

But given the poor treatment and consideration of the big questions what happens when there is something less immediately obviously important – but in reality more important practically and politically.

Late last week Lallands Peat Worrier referred to a series of recent cases in the courts. Among the cases was Hatcher v PF, Hamilton. At the time LPW wrote,

” I’m sure this case will be an important and concerning judgement for those concerned with domestic abuse and its prosecution in Scotland, broadly conceived. Indeed, I’m sure they will be mightily scandalised by Lord Bonomy’s opinion, quashing David Hatcher’s conviction on the grounds that the incident lacked the constituting element of publicity in a breach of the peace. Hatcher had embroiled his wife in a “blazing row”,  driven by his own possessive and domineering attitude towards her. He would not permit her to leave or to sleep. She phoned the police.”

I had read the case and agreed with his initial comments. Surely this would provoke an outcry.

But there was nothing.

Minimal publicity.

And the astonishing nature of the decision overlooked.

And so Lallands Peat Worrier yesterday wrote a powerful critique of the decision under the provocative heading “Scotland legalises domestic abuse”. This is one of the most important blog posts (and blawg posts) there has been in Scotland since the blogosphere started to come into its own.  It is informed by empirical data on domestic violence. It lets the facts and the judgment speak for itself.

And where is the media coverage? Where is the outrage?

Limited to a small corner of the Scottish blogosphere.

This may be symptomatic of the media’s general approach to law: that it is something other, something too difficult to understand (but if that is the case you have an excellent post by Lallands Peat Worrier to explain the context and the law and the implications). It may be symptomatic of the media’s general approach to domestic violence. But either way the lack of reporting and scrutiny of an outrageous decision is nothing short of scandalous.

And why say this is an outrageous decision?

Here are the facts -summarised in para [2] of the opinion of Lord Bonomy,

“The charge of which the appellant was convicted was in these terms:

“On 7 January 2010 at 50 Kenilworth Avenue, Wishaw, (he) David Hatcher did conduct (himself) in a disorderly manner, shout, swear, place Lorraine Hatcher in a state of fear and alarm and commit a breach of the peace”.

Lorraine Hatcher is the wife of the appellant. Their children aged 12 and 15 were in the house at the time, but in their respective bedrooms. The appellant and his wife had a blazing row in which the appellant was plainly the aggressor. The sheriff made the following findings:

1. The complainer is the wife of the appellant. They have been married for 23 years and have three children, two of whom aged 12 and 13 years, reside with them at home at 50 Kenilworth Avenue, Wishaw. They were in the house with the complainer and the appellant throughout the evening of 7 January 2010 and the early hours of 8 January 2010.

2. The complainer is a technical instructor in an occupational therapy department. The appellant is a teacher. On the evening of 7 January 2010 the complainer told the appellant of her intention to attend an outing with around 31 of her work colleagues for a meal at 5pm on a date shortly after 7 January 2010.

3. The appellant objected to her doing so because of an issue which had arisen when she (the complainer) attended an office party just before Christmas 2009. The appellant had at that time become upset, angry and apprehensive of her fidelity to him due to her meeting another man at that previous evening outing, despite the fact that she had openly told him about the situation and discussed it with him.

4. On 7 January 2010 the appellant persistently questioned the complainer over a period of hours about the further outing and about the original pre-Christmas outing. He became agitated and angry and refused to allow her to go to bed.

5. At points throughout the said period, the appellant shouted at the complainer and at one point called her a fucking whore, a fucking slut and a cunt. The appellant would not allow the complainer to remain in bed by pulling the bed clothes from the bed.

6. The complainer was genuinely upset and alarmed by the use of those words and the appellant’s persistent questioning of her over several hours as well as his refusal to allow her to go to or remain in bed. The behaviour and conduct of the appellant throughout the period of several hours and late at night was likely to have caused serious fear and alarm to his 12 and 15 years old children present in the house. The conduct of the appellant was severe enough to cause alarm to an ordinary and reasonable person observing the same.

7. As a result of her upset and alarm at the appellant’s behaviour, the complainer called police who attended.

8. The appellant behaved in a disorderly manner, shouted and swore at the complainer, placed her and highly probably their children in a state of fear and alarm and committed a breach of the peace.

There was plainly sufficient evidence to satisfy the first part of the test for breach of the peace, that is conduct which was genuinely alarming and disturbing to any reasonable person.”

And why was this not breach of the peace in the view of the appeal judges. See para [5]:

“[5] We find considerable force in Mr Shead’s submission that in this particular case the evidence does not support a finding that the conduct threatened serious disturbance to the community. Albeit the appellant’s conduct caused upset and distress to the complainer, and would have done to any reasonable person, it occurred within areas of the family home exclusively occupied then by the couple and did not threaten the public peace. It occurred entirely in private and was not a public disturbance. That is not to say that the conduct of the appellant should be condoned or tolerated. However, if there is a lacuna in the law and domestic partners are not protected by the criminal law where one abuses the other in a way that would cause serious upset and distress to a reasonable person, but does so in private, then it is for Parliament and not the Court to decide whether the law should be changed to criminalise such conduct. The complainer’s evidence was that two of the couple’s children aged 12 and 15 were present in the house throughout but were in their respective bedrooms, and she did not think that they were aware of what had happened. That was the only evidence on the subject. We do not consider that entitled the sheriff to hold in finding 6:

“The behaviour and conduct of the appellant throughout the period of several hours and late at night was likely to have caused serious fear and alarm to his 12 and 15 years old children present in the house”.

However, even if it did, the threat of such disturbance to the children within the household by an oral tirade of abuse and other unreasonable behaviour extending over a considerable period directed by their father towards their mother does not contain any element that can be characterised as “public”. We disagree with the sheriff in the view he expressed when deciding that there was sufficient evidence that the 12 and 15 years old children were entitled to be considered as members of the community or public.”

I have highlighted some aspects of the decision. The lacuna in the law mentioned by Lord Bonomy – is – as is shown by Lallands Peat Worrier – created by the very decision of Lord Bonomy. The lack of evidence of the children apparently justifies the appeal – although one could argue that not putting the children through the trauma of giving evidence against their parent in a court when there is other evidence is not an unreasonable action of the Procurator Fiscal (the Scottish regional prosecutor). But the final two sentences of paragraph [5] is surely the most scandalous.

If breach of the peace requires public conduct then

“the threat of such disturbance to the children within the household by an oral tirade of abuse and other unreasonable behaviour extending over a considerable period directed by their father towards their mother does not contain any element that can be characterised as “public”. We disagree with the sheriff in the view he expressed when deciding that there was sufficient evidence that the 12 and 15 years old children were entitled to be considered as members of the community or public.”

So the children and the mother are not members of the public.

And the implications of that are followed up in para [9]

“[9] As well as referring to Paterson, the learned sheriff relied on the opinion of the Full Bench in Jones v Carnegie 2004 JC 136, 2004 SCCR 361, 2004 SLT 609 to support his rationale for holding that the evidence was sufficient, which he expressed in these terms.

“Other persons present in the house, that is the 12 and 15 years old children in this case, are entitled to be considered as members of the community or public all of which is clear from … Jones … and … Paterson …”.

We have already indicated above how the circumstances in Paterson differ from those in the present case. The particular passage in Jones that the learned sheriff must have had in mind is at paragraph 12 as follows:

“However we would caution that where conduct complained of took place in private there requires to be evidence that there was a realistic risk of the conduct being discovered”.

In our opinion that statement , which was obiter in circumstances which have no direct bearing on the present case, does not support the view that every child within a family environment is a member of the community or public in the sense understood for breach of the peace, nor that any significant behaviour that threatens or causes disturbance to other members of the family within the household must inevitably satisfy the second part of the conjunctive test for breach of the peace.”

which leads to the alarming conclusion in para [10]

“[10] As the cases referred to demonstrate, conduct in a private house may occur in circumstances which provide the necessary public element. What is envisaged in these cases is that conduct in private will raise the realistic risk of the public peace being disturbed.”

I can do no better than quote Lallands Peat Worrier on that as he notes this private/public distinction is artificial and bizarre. His example makes the point very eloquently,

“if Lorraine Hatcher had a friend visiting when the incident above occurred, it would be a breach of the peace, but because of the judicial contortions that deny the children’s character as members of the public, it isn’t? What about an aunt? What about a third cousin once removed? What if the couple had separated for a time – suddenly their intimate quarrel takes on the quality of publicity? At what point specifically does that happen? What if one of their children had had a friend staying over? The exclusion of the children doesn’t exactly seem premised on their youth, so presumably that single extra body, shivering in their room as Hatcher’s jealous tirades thudded off the walls would transform the event into one promising to unsettle the public and hence, one subject to the protections of the criminal law?”

The decision is an outrage.

The lack of media coverage of the decision and its implications tells us a great deal about that sphere and its relation with the law.

Advertisements

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in law. Bookmark the permalink.

4 Responses to Law and the mainstream media – domestic violence

  1. Pingback: How twitter works – part 95 | Love and Garbage – some commonplace musings

  2. almax says:

    Scott

    Thanks for this excellent complement/compliment to LPW’s posting.

    The thing that astonishes me is the headlong flight away from what was, until relatively recently, regarded as the major strength of our common law system – namely the ability to adapt to change by reference to principle – for example, the Khaliq v HM Advocate 1984 J.C. 23 glue-sniffing kit case was widely admired because the decision was so obviously correct – even although nobody had ever thought of such a crime before, far less legislated against it. The common law proved eminently adaptable.

    In effect, the position in Scotland was that you couldn’t commit acts that were obviously criminal just because there was ‘no law against it’. Of course, that has its obvious dangers, because it’s possible for the law to be unreasonably and retrospectively extended by judges – but in fact, that has hardly happened (you could argue around the edges about the use to which common law was put during the miners strike etc), and we would expect the High Court to be vigilant to prevent it.

    But now, we increasingly find that even where there is ‘a law against it’ (abusing your wife a la Hatcher) the High Court finds that our common law doesn’t prohibit behaviour that is, and always has been, patently criminal. Instead the High Court seems to want everything to be written down by Parliament. So, we’re going to be johnny-come-latelys to codified law – this way to the Theft (Scotland) Act etc – a bonanza for lawyers.

    In the meantime, one wonders what the police response to Hatcher’s case is – on receipt of the 999 call from the terrorised wife must they now ask if there are any members of the public present and alarmed? “No – well, sorry dear, there’s no crime and we can’t attend”.

    • I have recently added a comment to your blog regarding the codification argument raised there. One of the arguments the judges used against the possibility of codification of criminal law (when proposed by Eric Clive and others) and the other SLC codification proposals regarding remedies in breach of contract, was that the law would not have the flexibility and adaptability of a common law system. The courts would not be able to respond to changing social attitudes and conditions. The manner in which this flexibility and adaptability is used in this case clearly demonstrates the power of that argument. (end murmuring)

  3. Pingback: The Vicar of Rome came to visit and can you tell an election is coming? – Scottish Roundup

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s