Yes, that really is the law. Whatever it may say in legal textbooks or on government websites, in the real world of Magistrates' Courts there is no defence to a charge of harassment.
If she says that she's been harassed, then she has been harassed, and the only question for the defendant is whether he is prepared to plead guilty for a lighter sentence.
The solicitor will tell him bluntly that the only defence against a charge of harassment was "not to have done it", even though it was entirely up to the accuser whether or not he had done it. That's just the way it is.
I was told very frankly, for which I am grateful, that the crime of harassment was making the other person feel harassed, so that if she said that she had felt harassed, then I was guilty by definition. Plead guilty and hope for the best.
The existence of such a crime certainly came as a surprise to me, but an ex-copper and the former Chief of Staff to a Cabinet Minister know these things. Well, sweeties, so do I now. So do I now.
"entirely up to the accuser whether or not he had done it"
ReplyDeleteI think that technically that is not the accuser, that is the witness.
Because of that and some innovations that absurd anglo legal tradition quite a few bits of criminal law have become "a surprise".
For example consider the concept of "consent", which is like "feeling harassed" an internal state of mind like "belief": if a witness to a crime involving "consent" testifies that they did not "consent", it is impossible to prove otherwise.
Also consider for both "harassment" and "lack of consent" how that has effectively reversed the presumption of innocence: if the witness testifies that they have "have felt harassed" or "did not consent", that counts of proof that a crime has been committed the witness is entitled to the presumption of innocence from the crime of bearing false witness (and in any case they are making a statement purely as to their internal mental state, which cannot be proven false).
Internal mental states like "feeling harassed", "not consenting", "believing" are used as standards of proof only when the lawmakers want to make sure that prosecutions always succeed or always fail.
For two examples of the latter, company directors actions are fine as long as they *believe* that they are in the interests of the company, and a minister's directions to telecommunications businesses are legal as long the minister believes that they are necessary or expedient.