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170 J.P.N. 1 (2006)

handle is hein.journals/cljw170 and id is 1 raw text is: the Cases Reported in January (1) 2006 R (on the application of Jones) v. Chief Constable of Cheshire Police - Pedlar's certificate - whether chief officer has power to suspend, revoke or seize certificate. QBD. Page 1 R (on the application of H) v. Crown Prosecution Service - Criminal law - drunk and disorderly - arrest without warrant. QBD. Page 4 Corner v. Southend Crown Court - Road traffic - driving with excess alcohol. QBD. Page 6 Director of Public Prosecutions v. Hall - Criminal law - Protection from Harassment Act 1997, s.5(4). QBD. Page 11 EDITORIAL DOMESTIC DISHARMONY AND THE CRIMINAL LAW Intimate relationships come in all shapes and sizes (especially these days). Some will prove to be happy and permanent; some will not last the distance, but will end, if not entirely agreeably, without blood being spilt; others will be highly charged, frequently off one minute and then on the next as they career towards a final, usually tempestuous, parting of the ways. It is impossible to foretell whether a relationship will fall into the first or second categories. To achieve permanence requires a large measure of luck as well as dedication. Volatile relationships are, however, often easy to predict. There are usually plenty of clues to what will happen (though the parties may not recognize them until it is too late). The question I consider here is how the criminal law should become involved, if at all, when sparks start to fly? Obviously there has only ever been one answer where significant injury has been suffered. The state must prosecute. In relation to less seri- ous violence, however, opinion has changed. At one time, if an incident was domestic this militated against prosecuting. But now the opposite is true and the police and the CPS will pursue the case even where the victim opposes this and has made this clear in a retraction statement. This policy is understandable, though I have previ- ously argued that a more efficient and expeditious solution should be found to achieve redress and protection for the victim. What, however, is the right way to deal with mere repeated nuisance or abuse or intimidating behaviour by a discontented current or ex-partner? At one time, the only remedy was to obtain a civil injunction if the conduct in question warranted it, but this was perfectly adequate in the vast majority of cases. Now, however, we have the Protection from Harassment Act 1997. It was meant to deal with stalkers, but it is now being used against all manner of domestic nuisance-makers. Regular readers of this journal know my views on the Act. While there were clear difficulties in defining stalk- ing, any lacuna in the criminal law in relation to it could surely have been identified and filled with a bit of effort. Instead, however, the Government took the view that, because stalk- ers do not stick to activities on a list (D. MacLean, Home Office Minister, HC, col.827, 17/12/96), there should be no list at all or even any attempt at a proper definition. (Imagine the con- sequences if the same approach were taken to offences against property!) The result is an amorphous, limitless offence. Harassment can be committed by a course of conduct comprising as few as two acts and these may be seem- ingly innocuous or even well meant. The potential breadth of the offence is especially ripe for exploitation in the context of volatile relationships. Invariably, they end with abusively or aggressively expressed recrimina- tions, often on both sides. In the old days, the worst of these instances might have brought the offender before a criminal court to be bound over. But the availability of criminal harassment and the pressure on the police and CPS to prosecute domestic offences are such that current or ex-partners are finding themselves in the dock some- times for no more than sending a few abusive text messages. Moreover, some very questionable police practices seem to have developed. Harassment requires conduct on at least two occa- sions. But though one act is not enough to constitute the offence, and the further act or acts must fall within the same course of conduct to trigger liability, some police forces are in the habit of issuing first warning notices. This is no doubt meant to lead the recipient to believe that he is halfway to court and will complete the journey if there is any further act against the victim. But it is a form of cautioning that was hith- erto unknown and, given the undefined nature of harassment, it is seriously open to question. AJT Volume 169 JUSTICE fthe PEACE 1

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