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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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