13 September 2010

Scotland legalises domestic abuse...

Surely not? Surely our representatives would have voted on any such proposal in the Scottish parliament? Surely if we'd done such a thing, the public sphere would rebound with remonstrances and controversy?  Apparently not. I'm talking about the implications of the case of David Hatcher v. Procurator Fiscal, Hamilton and the judgement handed down by Lords Bonomy, Hardie and Wheatley in answer to Hatcher's appeal in the High Court of Justiciary. I mentioned their opinion in the latest edition of my Tales from Parliament House series this weekend, but wanted to defer my elaboration till now. The case was briefly mentioned by the Herald, the Sun and the Glasgow Evening Times, but none of them seem to have noticed the gravity of this decision, seeing David Hatcher's quashed conviction as an isolated incident, rather than a pebble splash whose ripples will be felt throughout the prosecution of breach of the peace and domestic abuse across the country. Reading their coverage, all three seem to assume that in Hatcher's case the Crown had been attempting to extend the application of breach of the peace to a new and untried degree and the Lords of Justiciary merely repelled any extension in their judgement. Not so. On my reading, this case changes the Scots definition of breach of the peace quite radically, with significant implications for any domestic incident causing "serious fear and alarm".

Many folk have entertained qualms about the historical shapelessness of the Scots Law crime of breach of the peace. Recent years have seen incremental progress in sketching the contours of the offence as the High Court of Justiciary have solidified its definition, precedent by precedent. Lord Bonomy appeals to that context in Hatcher's case, saying:

"It was inevitable that the debate would soon move to the question whether severe oral abuse of, and unruly behaviour towards, one domestic partner by another over an extended period within the confines of the family home can amount to a breach of the peace, and more particularly whether in a given case that conduct did constitute a breach of the peace. That is the issue focused in this appeal."

Here is where we would do well to sit up and pay attention. Why? According to Scottish national statistics, the police recorded 53,681 incidents of domestic abuse in 2008-09. 55% of these incidents lead to some sort of criminal intervention. Minor assaults were the most prevalent category of crime recorded, representing 23% of the total, some 12,518, all told. Crucially, for our present purposes:

"Breach of the peace was the second most common accounting for 18 per cent (9,650) of incidents resulting in a crime or offence being recorded (see Table 1)"

While the legal ambit of breach of the peace charges may be of interest to a technical jurisprudential few, domestic abuse is an issue attracting far more intense public scrutiny. Here these two issues interact in a fundamental way. In Hamilton Sheriff Court, Hatcher was convicted on the following, formulaic and familiar charge:

"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".

The facts, as set out by the Sheriff at first instance, were undisputed. To avoid distortions on my part, they are worth replicating in full:
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.

Those are the facts. So what was Hatcher's case? As Lord Bonomy suggests at the outset, the case turns on the question of publicity. Or in this case, the absence of publicity. Breach of the peace is defined as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". Hatcher argued that the events narrated above had no public element and were "the paradigm case of conduct in private". This relies on the contention that the two children in the house were of no consequence, or as the Court put it, the notion that that the 12 and 15 years old children were not "entitled to be considered as members of the community or public", however terrorised or alarmed they might have been by their father's thuggery and bawling and possessive abuse of their mother. Rather astonishingly, the Court was persuaded by these submissions. Per Lord Bonomy again, emphasis mine:

[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. 

This is inveterate nonsense. In particular I direct your attention to the italicised section. Magisterially, Bonomy attempts to imply that he and his brother judges' hands are tied, that they are motionless, upholders of the democratic principle that our parliamentarians should be the movers and the shakers. "It is not for us..." Unfortunately, this loses its air of plausibility if one notices that their judgement is actually changing the law, I don't doubt to the chagrin and surprise of procurators fiscal across the country. As the statistics I mentioned above strongly suggest, breach of the peace is an all too familiar charge as our criminal agencies respond to instances of domestic abuse. There almost 10,000 instance of its application in 2008-09 alone. If there is a lacuna in the criminal law, leaving abused spouses no protection in the presence of their children, then it is this judgement that creates it. Moreover, the distinction between public and private which the Court relies on seems to me totally artificial. Their Lordships note:

[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. Not surprisingly none of the cases involves conduct occurring, and having its potential effects, exclusively within a family. WM and Paterson involve an estranged partner and a family friend respectively. That does not mean to say that a breach of the peace cannot be committed by conduct directed by one member of a family towards another within their dwellinghouse. As has been said repeatedly, whether there is a breach of the peace depends on the circumstances in which the conduct occurs.

So 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? There is much more one could say about the conceptions of public and private behind this judgement, but I'll leave you with those questions. The very real and very worrying consequences of this case should be clear enough. Some of this may be mitigated by section 38 of the new Criminal Justice and Licensing (Scotland) Act 2010, which criminalises threatening or abusive behaviour - but only once it comes into force. And even then, quite how the Court will interpret that statutory offence remains unclear.

Until that time, Lords Bonomy, Hardie and Wheatley have effectively legalised non-assault domestic abuse within the confines of the family.


  1. Many thanks for this excellent post hope this topic gets greater discussion. My family had a similar experience in a household with an alcoholic father, he had frequent shouting rages and broke furniture but didn't physically hurt family members. The stress of living with this erratic individual over a couple of years severely impacted the mental and physical health of 3 grown adults in the same house (wife and 2 children). We lived in fear but plucked up courage and got some legal advice to try and have him removed but were stunned to find that the advice was that we were unlikely to be successful, the best chance would be if he behaved similarly *in public* or out on the streets where the police would have picked him up. Of course he never did that, so we felt we had no option but to flee and leave him but we've never recovered from the shock of finding so little protection in law for people subjected to bad behaviour "behind closed doors' within a family. I know well now that there are many families in Scotland suffering in similar circumstances. For all the other improvements in tackling domestic violence in Scotland in recent years it's a pity that the law is lagging behind.

  2. Careful! If we show signs of tackling "non-assault domestic abuse" we will find that a significant percentage of the shouting-and-screaming type of offence is committed by the female partner. We are doing our best to avoid examining the domestic abuse committed by females, as a glance at the expenditure figures will demonstrate. And Labour's policy is practically predicated on its non-existence. We do not want these waters muddied, thank you. Leaving my cynicism aside, it is actually possible that their Lordships are merely engaged in a praiseworthy attempt to get the Crown to libel offences properly, instead of reaching for the blunt instrument of breach of the peace. The admitted facts you give above suggest that the Crown should have tried assault. My ancient copy of Jones and Christie tells me that Macdonald's statement that "Gestures threatening violence so great as to put another in bodily fear, whether accompanied by words or not, constitute assault" is judicially approved, and then goes on to give the example of John Irving (1833) Bell's Notes 88, in which mere fist-shaking was sufficient. Surely pulling off the bed-clothes would be as well? It is unfortunate for Lorraine Hatcher, who is genuinely a victim, that the Crown did their job badly here, but it seems to me that the law does actually offer her protection.

  3. A belated response to both, my apologies.

    Firstly, Anonymous, I'm sorry to hear about your travails. I've done by best to draw attention to the implications of this decision. To their credit, a few of our parliamentarians have responded and per my post this morning, the Scottish Government seems to have swiftly moved to do so.

  4. Am Firinn,

    To take your last point first, I'm insufficiently well-versed in the detail of the offence of assault to give you an informed answer. At least, not without a little research. On the second point, I certainly accept that we have historical and continuing difficulties with the social and legal recognition of male victimhood in general and female violence in particular. That said, it is certainly not unimportant that most victims of domestic abuse and gendered violence are woman.