A deficit of understanding - how prevalent is this?

[Nick Armstrong]

As I am sure you know as well as I do a newspaper report is not always entirely reliable evidence of what was said . Do you really think it likely that Sweeney J did not explain the constituent elements of Section 47 CJA 1925 defence to the jury ?

You are probably right but the fact remains that you have no evidence of it on the specific occasion in question - just speculation (quite possibly well-founded) based on extrinsic knowledge and assumptions.

[Barbirollians]

You are probably right but the fact remains that you have no evidence of it on the specific occasion in question - just speculation (quite possibly well-founded) based on extrinsic knowledge and assumptions.

Tell that to the Court of Appeal when they uphold a judge's decision on the basis of such inferences !

[Nick Armstrong]

Tell that to the Court of Appeal when they uphold a judge's decision on the basis of such inferences !

With a bit of luck someone will tell the CA the facts!

[Barbirollians]

With a bit of luck someone will tell the CA the facts!

I said A judge not the judge in this case. The appellate courts often draw inferences from a judgment that are not apparent on its face.

[Nick Armstrong]

I said A judge not the judge in this case. The appellate courts often draw inferences from a judgment that are not apparent on its face.

Nonetheless one hopes that they have the odd fact at their disposal!

[jean]

Jean I am afraid you misunderstand the nature of a trial .

That is quite extraordinarily rude, even if it were true.

It is not a question of speculation - it is a question of hearing her evidence and considering all the circumstantial evidence and deciding whether you believe , on the balance of probabilities that she was coerced in the presence of her husband . It is not speculation at all .

As other posters have pointed out, the problem with this trial is precisely the absence of evidence.

Those are the circumstances in which inference shades into speculation. It is to the jury's credit that they recognied this, and were scrupulous enough to ask for clarification.

(What I'd like you to consider is why, given that other posters have made the same points as I have done, you felt it appropriate to address me in this way, while treating those others with respect?)

[Karafan]

No comment other than fact on this case, please.

Actually, the Guardian doesn't say 'don't comment'. You can't comment as comments are not open . But you see how easy it is to comment on high profile cases - or quote comments!

Quite right, pity no-one thought to whisper this to the South African police service!

[Barbirollians]

That is quite extraordinarily rude, even if it were true.


As other posters have pointed out, the problem with this trial is precisely the absence of evidence.

Those are the circumstances in which inference shades into speculation. It is to the jury's credit that they recognied this, and were scrupulous enough to ask for clarification.

(What I'd like you to consider is why, given that other posters have made the same points as I have done, you felt it appropriate to address me in this way, while treating those others with respect?)

I am sorry I did not intend to cause offence but you do not appear to get the fundamental point namely that there is evidence - namely her oral evidence and the evidence of her children as to the nature of their relationship .

The question for the jury was thus to be satisfied whether she was subject to coercion in her husband's presence . That form of coercion is not limited to physical but includes being put under "moral" pressure such that her will was overborne - i.e she had not choice .

It is not speculation - it is a question of whether she is believed in the light of her evidence and the circumstantial evidence such as it is .

[french frank]

I wonder whether this defence is scarcely used these days (and perhaps regarded as archaic?) because it harks back to a time when there was (in this country, shall we say) a different concept of the marital relationship from now - when the wife was wholly dependent upon the husband, financially and in other respects, and when she was regarded as subservient to him? Coercion, as has been pointed out, is not, in judicial terms, the same as duress - where sadly marital brutality does still exist.

It may be that in some jurors' minds, particularly (?) some women, that concept does still exist and that the key judicial consideration of whether the wife does in reality have a choice in her actions would be a confusing one. Their notion of the 'probability' of such a marital situation might provoke discussion, disagreement and the hope of some judicial guidance.

[jean]

I am sorry I did not intend to cause offence but you do not appear to get the fundamental point namely that there is evidence...

There, you've done it again.

I'll have to let someone else make the point for me, since you infer (though I would prefer to say speculate) that I am too stupid to require that you should pay any attention to what I say.

Even I can understand the theoretical and indeed practical distinction between inference and speculation. But I'm obtuse enough to be able to think I can imagine plenty of situations where the first shades into the latter. Presumably it would be frowned at if the jury simply said 'we haven't the foggiest. Because we have nothing tangible to go on"?

A good case for a verdict of not proven, I'd say, if such were available.

[Barbirollians]

I wonder whether this defence is scarcely used these days (and perhaps regarded as archaic?) because it harks back to a time when there was (in this country, shall we say) a different concept of the marital relationship from now - when the wife was wholly dependent upon the husband, financially and in other respects, and when she was regarded as subservient to him? Coercion, as has been pointed out, is not, in judicial terms, the same as duress - where sadly marital brutality does still exist.

It may be that in some jurors' minds, particularly (?) some women, that concept does still exist and that the key judicial consideration of whether the wife does in reality have a choice in her actions would be a confusing one. Their notion of the 'probability' of such a marital situation might provoke discussion, disagreement and the hope of some judicial guidance.

It is a fair point but the difficulty is that judges if they overdirect the jury can be challenged for doing so - whether because they narrowed or widened the ambit of a defence or were seen to be obviously directing a verdict one way or the other . The current defence replaced a presumption that an act done by a wife in the presence of her husband was at his behest . The question despaired of by the judge about the marriage service and the obligation to obey might be relevant if it was raised as a reason bearing in mind in particular that it appears to be a part of the historical basis for the defence .

The Law Commission proposed its abolition in 1977 but that was not acted on . As the defence of duress requires a threat of violence such as to put one in fear of your life or grievous bodily harm - considering the care and concern that the courts have developed over accepting that domestic violence includes psychological violence simply abolishing the defence without replacing it might be considered unwise when the test for duress is so high.

The point that it only applies to wives and not husbands or civil partners or women and men living together as husband and wife shows how anomalous it is though .

[jean]

It may be that in some jurors' minds, particularly (?) some women, that concept does still exist and that the key judicial consideration of whether the wife does in reality have a choice in her actions would be a confusing one. Their notion of the 'probability' of such a marital situation might provoke discussion, disagreement and the hope of some judicial guidance.

I am sure this is what was behind the seemingly totally irrelevant question from the jury about VP's religious belief, which might require her to obey her husband.

But I wonder if you are correct that it's women who are more likely to feel like this. I speculate that a man, particularly one from another culture (?) might well think this way.


[Edit: cross-posting. I had written this before #71 appeared.

...The question despaired of by the judge about the marriage service and the obligation to obey might be relevant if it was raised as a reason bearing in mind in particular that it appears to be a part of the historical basis for the defence...

I speculate that was exactly why it was raised. ]

[Nick Armstrong]

I wonder whether this defence is scarcely used these days (and perhaps regarded as archaic?)

Although I'm not a criminal practitioner, I am almost certain you are right. I'd never heard of it being used before.

[jean]

I posted this before but it's got lost somewhere, and will bear being posted again.

[Nick Armstrong]

I posted this before but it's got lost somewhere, and will bear being posted again.

Thank you jean, very interesting.

I wonder if the jury are told it's the first time it's been relied on since 1922...