You may have been sleeping. You may have been sat in your smoking jacket and your fez, enjoying a beaker of port. You may have been sat in your underpants playing late-night internet poker and slamming espresso shots. Either way, at 00.01 am this morning, the pithily named Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 2) Order 2010 brought §38 of that Act into force, speedily closing a legal loophole that effectively legalised non-assault domestic abuse in Scotland. If this "fast-tracked" action wasn't enough, sparrowfart's Scottish Government news release confirms my argument - this really was an issue which the press could have got its teeth into, if they had but looked into it. Interestingly, the Scottish Government links its action to the case of Harris v. H.M. Advocate, decided in 2009, on whose reasoning the High Court of Justiciary relied in their much more recent, chimerical decision in Hatcher v. H.M. Advocate. I quote:
"The move follows fears that a court ruling last year may have created a gap in Scots law which could make it more difficult for prosecutors to secure a conviction in some cases of domestic abuse and other crimes which take place in private. Historically, prosecutors have used the common law offence of 'breach of the peace' as one of the range of conviction options available to them to punish those who abuse their partners. However, an appeal court ruled last year that breach of the peace requires a 'public element', prompting concern that offences taking place behind closed doors or in isolated areas may escape justice. Crucially, this new statutory offence does not require any public element for an offence to have been committed. Ministers acted swiftly to close the loophole through the recently passed Criminal Justice and Licensing Act."
Notice the language, here. Harris didn't confirm the problem - it merely provoked well-founded apprehensions that the High Court's reasoning may prove perilous for abusive conduct that didn't occur within that eccentric domain the Court is satisfied to style "public". As Lord Bonomy noted in his judgement in Hatcher:
"In Harris v HM Advocate in which the long-standing decision in Young v Heatly was over-ruled by a Full Bench, and in WM v HM Advocate, the Court focused attention on the need for "a public element" in conduct before it can amount to a breach of the peace, and provided some guidance as to circumstances in which conduct in an apparently private place might be said to have a public element. 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".
Focussed in that appeal and resolved in that appeal - in a judgement of the 7th of September this year. Think about it. If the issue was fully resolved in Harris - self-evidently, so it went without saying that the conduct experienced by Lorraine Hatcher was legal - why was a new appeal necessary? Why does Bonomy detect movement - albeit set in train by the earlier decision? We might also reflect that it hardly redounds to the Government's credit if this supposed "fast-tracking" took 12 months, meanwhile the victims of domestic abuse were left without any recourse to the criminal law. Moreover, the Criminal Justice & Licensing Act received royal assent on the 6th of August 2010, yet well over a month passed by before any commencement order was laid. Hardly an issue, if it was wholly clear before September's case of Hatcher, which a diligent and responsible government concerned with domestic abuse would sit on, surely? While I find these contortions mildly inexplicable, happily such debating points are now moot. While Lorraine Hatcher will not see justice done in her plight, Scotland's many other people who find themselves in the same position - and turn to the police for aid and assistance - will now at least be backed up by criminal law which accompanies you inside your home and does not give your dominating pater- or materfamilias the unalloyed right to treat you like hell, so long as they don't give you a black eye. In the mandatory ministerial dénouement, Justice Secretary Kenny MacAskill is quoted saying:
"The effects of domestic abuse can be devastating and we are doing everything we can to tackle it. We've done a lot of work to raise awareness that this behaviour is totally unacceptable, that help is available, and to encourage more people to come forward, safe in the knowledge that they will be supported. And Scotland's police forces are cracking down on these despicable crimes whenever and wherever they occur. But we must ensure that where these offences are carried out, those who commit them are brought to justice. That is why, working with law enforcement agencies, we've taken action to address this gap in the law created by recent court judgements. This will give victims greater legal protection, whilst ensuring prosecutors have the full range of powers available to them to bring about a conviction. We want to send out the message loud and clear that if you carry out this offence, there will be no escape, there will be no wriggle room to exploit, and you will be met with by the full force of law."
An exceedingly welcome end to this neglected story.