16 September 2010

Scotland to recriminalise domestic abuse...

On Monday, I drew the recent case of Hatcher v. Procurator Fiscal, Hamilton to your attention, arguing that in their resolution of that matter, the High Court of Justiciary had, to all intents and purposes, legalised non-assault domestic abuse in Scotland. What's more, the decision seems to me to be premised on some fundamentally questionable reasoning about the much mooted public/private divide which one does not need to be a feminist jurisprude to find concerning. In short, it is a judgement to shock, but shock has not been forthcoming. Since then, I've been quietly agitating behind the scenery to try to prod, cajole and otherwise compel an awareness of the judgement into the public sphere, both parliamentary and press. My fellow, occasional Scots blawger Love and Garbage picked up the thread in a piece more explicitly critical of the minimal media coverage this case received, while what coverage there was managed to miss the substance of the case's newsworthiness entirely:

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.

Quite so, quite so. Moreover, it seemed to me that the gap torn out of our criminal law by the Court's judgement in Hatcher could be readily remedied by Holyrood - if only Ministers were alerted and induced to bring forward delegated legislation promptly. The cost of delay nothing less than the wholesale denial of justice for those who are domestically abused, but not assaulted by their abusive relations. I've blogged before on the too-often ignored phenomenon of the ubiquitous Commencement and Short Title section in Acts of Parliament. Acts don't slip into law immediately, once majorities have been marshalled and votes taken. Nor do they find legal life once the Queen has granted her Royal Assent. Rather, tacked on near the end, one almost always finds this wee section. Its effect is to hold the provisions of a passed Act in abeyance and empowers ministers to lay orders before parliament that particular sections will commence their lawful operation. At times, this can look like a pocket-veto, at least temporarily. More generally, it can be a helpful way of giving agencies time to put in place changes that will allow the new law to function smoothly. Otherwise, like all pockets, ministers' accumulate the forgotten detritus. Generally speaking, our tribunes are appalling custodians of their legislation once it is passed, paying minimal attention to the haste or slowness of ministers' commencement orders.

So what is the relevance of all that here? Well, in the lately passed Criminal Justice and Licensing (Scotland) Act 2010, two relevant provisions are made. Firstly, as usual, ministers are empowered to issue commencement orders to bring most of the other sections into effect. Secondly, Holyrood sanctioned the new offence of threatening or abusive behaviour which would almost certainly apply and criminalise David Hatcher's conduct, lately legalised by the High Court. The section reads thus:

38 Threatening or abusive behaviour

(1) A person (“A”) commits an offence if—
(a) A behaves in a threatening or abusive manner,
(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3) Subsection (1) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.

(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

The breadth of this offence is certainly not without its concerns for the liberally minded. However, if a whole range of individuals like Mrs Hatcher are not to face abuse without legal recourse, it seemed and seems to me to be crucial that pressure be put on Ministers to speedily issue a commencement order for section 38 and lay it before Holyrood. You can imagine my concern, then, that the issue  raised by Hatcher received no real airing in the public forum that might prove to be a spur to action, if Ministers hadn't been paying full attention. Happily, it seems that despite our clueless and inattentive media, someone knows their business and has paid attention to the implications of the Justiciary's ridicious decision in Hatcher. I'm informed that both Elish Angiolini, the Lord Advocate and the Minister for Community Safety Fergus Ewing were yesterday speaking at the annual conference of Scottish Women's Aid, which aptly enough met to discuss justice responses to domestic abuse. The Manager of Scottish Women's Aid tells me that the speakers confirmed that it is their intention that section 38 will speedily commence from the 6th of October. Hatcher's shameful lacuna will be filled in, in timely fashion. I've seen no official confirmation of this yet, but no doubt the order will be put before Holyrood in due course. A welcome result then, but one realised in the face of the continuing lazy indifference of the Scottish media, who seem to leave every sinew unstrained in the pursuit of truth and justice.

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