11 September 2010

(Gendered) Tales from Parliament House Vol. 7.

A gallimaufry of legal titbits has been accumulating of late in the dim litigious light of Edinburgh's Parliament House. Time again, I think, to give some of these scenes legs and form them up in an orderly review. Interestingly, all three of the issues I've picked out have some gendered theme, whether touching on prevailing conceptions of Scottish masculinity, attitudes towards women, or potentially sinister implications for the prosecution of domestic abuse, broadly conceived.

Self defence: "I turned round to give him a punch and forgot I had a glass in my hand"

One suspects the High Court of Justiciary was  rather reluctant to quash Ray Sneddon's conviction. Our setting is the car park of the Calderwood Inn in Bonnyrigg. Our dramatis personae were seemingly as sober as Court of Session judges (during the heavy-drinking days of Kames, Monboddo and Braxfield). The jury found that the accused had been provoked by the victim, but it doesn't sound if he made the best of himself during his stint in the witness box:

"The appellant gave evidence in support of the plea of self-defence and during his evidence in chief he maintained that position, the sheriff observes only just, in that he said "I turned round to give him a punch and forgot I had a glass in my hand". The sheriff comments that, in cross-examination, he proved to be an appalling witness so far as his own interests were concerned and he gave evidence so poorly that before speeches "I gave active consideration to the issue of whether or not the self-defence could remain before the jury". Effectively his position was that he was drunk and angry and that if he was hit by anyone in that situation his proper and ordinary reaction was, as it was here, to hit back. He made no attempt to indicate that he would remove himself from such a situation even if he could, or that his reaction be measured to deal with the attack proportionately for self-protection purposes."

As hapless as his defence appears and as grim as his violent common sense seems, the sheriff got rather muddled in his directions to the jury - and in a bound Sneddon was free. The incident has many clones across the country, the attitude exemplary, while the complainer's serious injuries are just one more indelible testament to the miasma of what Gerry Hassan has called "Scotland’s heady brew of toxic tartan masculinity".

Football: "this is like the wee tickly bit before you come"

It'll no doubt stun you all to learn I'm not a football man, myself. I've no loyalties, no interest in the flying bladder, no familiarity with the characters of the sport or of their travails. Keen observers will no doubt have read recently of John McCormack's action in the Session, arguing he had been unfairly dismissed from his position as manager by his employers, football club Hamilton Academical. Lord Woolman was presiding and found in McCormack's favour, but didn't find him a wholely favourable figure. Much of the interest of the case is puerile. Like many others, I find the combination of dry, technical legal language and the freer "fuck" spattered parlance of the football pitch quite irresistible. That said, the way McCormack conducted himself towards Jillian Galloway is scandalous and contemptible, yet another manifestation of how odious stickily homosocial groups of men can be. Galloway was a twenty-one year old trainee physiotherapist working part-time at the Club. I quote from the facts narrated in the judgement:

[28] Before the final match against Dundee United, Mr McCormack gave a team talk in the dressing room. Both Mr McAvoy and Miss Galloway were present. Mr McCormack told the players "this is like the wee tickly bit before you come". He then added words to the effect "even Jillian is excited - look how hard her nipples are". Mr McCormack said that these comments were made in a jovial manner. His aim was to break the tension that the players felt. He regarded his remarks as standard locker room banter, which helped to motivate the players.

[29] After the final, Miss Galloway was sitting outside the dressing room. She had ascertained that none of the Hamilton players required treatment. Mr McCormack told her that the physiotherapist should be in the dressing room at all times, in case treatment was required. He instructed her to go back inside with him. As they went into the dressing room, Mr McCormack said "get your tackle out lads, Jillian's coming to see who's got the biggest tadger".

[30] Mr McCormack decided to take a shower before boarding the team bus home. At that stage Miss Galloway was in a corner of the dressing room. She felt uncomfortable at being there and was pretending to attend to things in her treatment bag. Mr McCormack went over and undressed in front of her. He returned to the same spot after his shower and dressed there.

[31] Miss Galloway said that she felt very embarrassed by these incidents. On the bus trip home, Mr McCormack spoke to her and said that he hoped she was not embarrassed by his remarks. She did not reply. She explained that she found it was difficult to do so, as she was a female aged 21 and he was a 50 year old male. She felt intimidated by his status within the club and was concerned not to say or do anything that might harm her career.

McCormack told the court that Galloway had fabricated her account on him undressing in front of her. Lord Woolman wasn't having it, saying "where there was any conflict in the evidence, I unhesitatingly prefer the evidence of the other witnesses to the testimony of Mr McCormack. In my view, the starkest contrast occurs between his evidence and that of Miss Galloway. I found her to be a transparently honest and reliable witness." I abhor McCormack's casual, thoughtless sexism and sexualisation of this young woman, his heedless, careless undermining of her professional position, disregard for her feelings and the disparities of power in their positions, eyes no doubt twinkling all the while with a misplaced sense of his gallus, waggish charm. McCormack is undoubtedly a fool and a knave, but we shouldn't get lost in the cul de sac of his individual responsibility. Personal bastards trade in social conventions and here he was no doubt applying his gendered common sense that told him that men's sexualisation of women in the public sphere is perfectly acceptable. And for that matter, similar rules seem to haunt the hegemonic psyche in relation to other men whose masculinities are perceived to be less robust. 

Publicity, private jealousies and breach of the peace...

And finally, to round off these gendered tales of Scots law, this month has seen another case on the continually vexed question of what constitutes a breach of the peace in Scots Law. 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. The sheriff's full findings of fact are set out in the judgement. I may well return to the case in more detail when I have more time, but I thought it was important to highlight it here. It may have very significant implications for the use of breach of the peace charges in cases of domestic violence, abuse and disorder in future. 


  1. So, thanks to Lord Bonomy and his colleagues, there is now no legal protection whatsoever for a person (very often a wife) who is subjected to the kind of appalling behaviour that David Hatcher directed towards his wife.

    Lord Bonomy says, in the pious way of the judge behaving abominably, "...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.."

    IF there is a lacuna in the law ??? - Yeah, there is - you just created it, you dolt.

    Now Parliament will have to legislate (but when?), and something which had been clear enough for centuries will soon become clouded in the fog of statutory interpretation.

    Since there now seems to be no point in the abused wife phoning the police, presumably she will now phone her male relatives, and we will be back to conflict resolution by baseball bat. I wonder at what point in these proceedings Lord Bonomy considers that the 'public' element creeps in.

  2. I sympathise with your position, Almax. I composed a post earlier this morning to that effect. Once more, I'm rather astonished that this case isn't really get any informed publicity given its implications, which to my eye looks serious and of significant public and political interest.