Picture this. A woman with a drink problem has been drinking in the afternoon and starts casting up accusations against her husband that he has had affairs sometime in the past.
Her husband, who is a bit on edge as he has recently given up smoking, pours her drink over her, grabs her by her clothing and slaps her. The police take the alleged assault seriously and he is arrested and the procurator fiscal service takes the alleged assault seriously and he is prosecuted.
His defence lawyer paints him as the victim for suffering arrest and prosecution. The judge tells him: “It is unfortunate you had to go through what you had to go through” in being arrested and prosecuted, in part because he is 72 years of age and has never been prosecuted before.
This is what seems to have happened in Selkirk Sheriff Court on Tuesday, except that it was a wife accused of attacking her husband (TheSouthern online story, “Border sheriff’s anger after Yetholm woman, 72, spends night in Edinburgh cells”, and Page 5 this edition).
Two points might be made. First, were a husband to act towards his wife in this manner and were his defence lawyer and the judge to make such comments, it is likely there would be a fair bit of criticism from politicians and others.
Secondly, there may well be problems with the inflexible joint protocol between the Association of Chief Police Officers in Scotland (ACPOS) and the Crown Office and Procurator Fiscal Service (COPFS) which need to be examined properly but even if there are problems, that is no reason to excuse domestic abuse by reference to the target having annoyed the accused, the accused being on edge and having “lost the rag”, recently given up smoking or not actually having caused injury.
School of Law, University of Dundee