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COOPER’S COUNSEL: If it were not Assize time…

COOPER’S COUNSEL: If it were not Assize time…

Peter Cooper LawYer

In the Family Violence Act 2008, three significant concepts have been added to the conceptual basis of Family Violence, and have turned many attitudes on their ear.

No longer is it possible for a person to say – what did I do? I have never touched him/her!

Built into the Family Violence Protection Act 2008 are now three categories of ‘non-violent’ family violence. It is now recognised that some of us assert control in the family home with a threat of violence. Some of us use economic controls to keep a family member subservient. Others may use emotional and/or psychological abuse in the form of put downs and sarcasm against a family member.

These are bewildering and yet, the idea of the laws of Assault as a crime and a Trespass, containing specifically violent and non- violent elements has been known for centuries. It was never controversial in theory, only in practice.

I have a view as to why it has happened this way, which I wish to share. It does not excuse you or me, if we are accused of it, but if we get some insight into our own thinking, I hope we are less likely to get accused of it.

Let me take you back to the 1680s in England to meet Mr Savage and Mr Tuberville. The 17th and 18th Centuries were quarrelsome times in England. There was no regular police force and even the Courts did not sit year-round, coming perhaps four times a year for “the Assizes”.

On a particular day, Mr Savage insulted Mr Tuberville. Mr Tuberville took offense, pulled back, laid his hand on his sword and said, “If it were not Assize time I would not take such language from you”.

Savage reacted and in the altercation that followed Tuberville lost an eye. He was sued in trespass for the assault and in his defence Savage said he was provoked. The court did not buy that. It found that, if anything, Tuberville had signalled that absolutely nothing would happen that day – Savage could not say he was in reasonable fear of something happening then and there.

And so down through the years a practical distinction between violent action and a threat of violence has always been the immediacy and the likelihood of a threat being carried out.

Even with the advent of the telephone, the practical distinction remained as a telephone call on a landline, no matter how repulsive, had to be coming from some distance away.

Then of course, with mobile phones and the internet and in particular handheld devices, this distance disappeared as a practical distinction and the true issue of threat appeared from under the carpet, where it had been successfully hidden for all those years.

The police began to require practical tools to address the problem now articulated by victims. That problem went something like this “He/she has never touched me but I always feel like I am walking on eggshells”.

The Parliament and the Courts gave them the tools to assess this problem in Sections 4, 5, 6, and 7 of the Family Violence Act 2008.

I will not put them in, they can be Googled readily. What we have to do is to accept that our thinking, that of our peers and indeed our culture has been reshaped by technology.

The time and space that was notionally available to Mr Savage to choose a non-violent response is no longer available.

So what do we do, positively, to protect ourselves from accusations and give a gift to our partners, spouses and children? I suggest the following:

  1. Consider how our behaviour looks to another – especially someone smaller and younger than ourselves.
  2. Empower our spouses, partners and family with money, be it pocket money or joint bank accounts. It is really not a question of how much so much as what you have to share.
  3. Come to grips with the manner in which we address our spouses, partners and family.

If necessary get a trusted friend, a real mate, to speak truth to us.

I do not see Mr Savage and Mr Tuberville as bad men, but we would agree that times have moved on. They would get no traction today – wearing swords was normal wear as was fighting each other with personal weapons.

Time has moved on for us too.

 

RECENT DEVELOPMENTS

Since this article first ran, the Police when facing domestic incidents have adopted the practice of issuing a Family Violence Safety Notice (FVSN). This has two effects:

  • There is no application for an Intervention Order. The FVSN has the immediate effect of an Interim Intervention Order. Your firearms licence will be suspended and firearms taken. The Application will be for a Final Intervention Order that will have a Firearms clause. See notes below.
  • The person who is now applying to the Courts is the attending Police Officer and, even when the affected person goes to the Police saying that they wish to retract, or when the family come together and take steps to restore the relationship, this is most likely to be ignored and it will be up to you to instruct your lawyer to bring up this issue in the Court.

My notes:

  • All these aspects of the Act relate to non-violent exercises of Power and, ladies and gentlemen, whether we like or not. To small children, disabled or elderly family members and spouses or partners who do not have PR or Citizenship… Believe me. Both men and women are powerful.
  • Tuberville V Savage [1689] HE England.
  • When a person has a “FINAL” Intervention Order recorded against them, then, they become a prohibited person for 5 Years, if the Order contains a “Firearms Clause” then a further 5 years prohibition applies and there is no ability to apply to be deemed non-prohibited. If there is no “Firearms Clause” then there is an ability to make application to be deemed non-prohibited.
  • What this means from a practical point of view is that it may be more prudent, especially in a complex family break up, to consent to the making of a Final Intervention Order on the basis that there is no “Firearms Clause” it. Then in your own time, make application to be deemed non-prohibited. Don’t hesitate to speak with your SSAA adjunct legal service for confidential advice. If you have a family lawyer, we will not act in conflict but we will be happy to advise them about the firearms specific issues.
  • Final Note- FVSN”s come right out of the blue. This means that if you are little bit slack about safety and storage, you will get caught out. Nine out of ten of the Firearms Act breaches with which I deal come out of charges arising from an unexpected visit by police from a FVSN. Keep your storage and safety procedures in accordance with the Regulations at all times.