Bad law, or rather, not actually the law at all
Posted on July 9, 2012 by Louise Restell
I have just finished reading Bad Science by Ben Goldacre. If you haven’t read it, you really should, especially if, like me, you are a ‘humanities graduate with little understanding of science’ and who wears my ‘ignorance as a badge of honour’ (well, less so the last bit). It got me thinking, if it’s dangerous not to understand science (witness the MMR scandal) it must also be dangerous not to understand the law.
I am not going to attempt to do a Ben Goldacre on the law (I am not qualified to and I only have about 1,000 words) but I thought I would highlight some of the most common myths and misconceptions about the law, some amusing but some with potentially disastrous consequences.
Myth 1: Common-law marriage
Of course, there is no such thing. But the myth that co-habiting couples have the same legal rights as those who are married is a tenacious one. According to research from the University of Warwick, it dates back to the mid 1970s when a few rights were granted to couples living together, including that someone who had been dependant on a deceased could have a claim on their estate.
If you’ve read Goldacre’s book (or even if you haven’t) it will probably come as no surprise to learn it was the media’s misunderstanding of these changes that led to the now widespread perception that couples living together for a certain period of time have a ‘common-law marriage’.
The tragedy is that this misconception will have caused untold misery for many couples who lived together in the assumption they enjoyed the protection of the law. It’s a problem that will only get more acute without legislative change, as the numbers choosing to co-habit are set to rise from one in six to one in four over the next few years.
Myth 2: It is almost impossible to secure a rape conviction
In March, Mumsnet launched a new campaign ‘We Believe You’ to highlight the prevalence of rape and sexual assault and expose the many myths surrounding rape, which result in a suggested 80% of women not reporting the crime.
The most prevalent fiction is that the conviction rate for rape is only 6%. This ‘fact’ was most effectively debunked by Amanda Bancroft (aka @_millymoo) in the Guardian and I won’t repeat it here, suffice to say the actual conviction rate is 58%, fractionally above the 57% conviction rate for reportable crimes of all types.
But just as pernicious are persistent ideas that women provoke rape by their behaviour, particularly if they have been drinking or taking drugs, and that it isn’t rape if a woman has previously consented to sex or is in a relationship with her attacker. As one leading prosecutor put it ‘the demonisation of young women is contributing to the failure to secure convictions of suspected rapists’.
Myth 3: The Human Rights Act (HRA) is a ‘villains charter’ undermining our sovereignty
Where to begin? Hardly a day goes by without some misrepresentation of the HRA in the press, whether because it prevents us from deporting terrorists, murderers and illegal immigrants or because it forces us to allow prisoners to access hardcore pornography.
The European convention on human rights from which the HRA derives is nothing whatsoever to do with the European Union, the Euro or European integration. It is a treaty signed by the UK and other European countries in the aftermath of the second world war with the aim of preventing such atrocities happening again in Europe. It provides protection for everyone, not just ne'er-do-wells, and isn't just about lining the pockets of lawyers.
You cannot not be deported for owning a pet cat.
Myth 4: Trespassers will be prosecuted
Less prevalent than they used to be, signs bearing this legend and designed to scare off the uninvited blighted many a country walk when I was growing up. In fact, just like a scarecrow, these notices are all mouth and no trousers because trespass is not a criminal offence for which the guilty can be prosecuted in the criminal court. They can be sued through the civil courts (although ‘trespassers will be sued’ doesn’t have quite the same ring to it).
Having said that, in some respects this isn't a myth any more since the government controversially extended the (criminal) squatting law to all vacant residential buildings, even where there is no tenant.
Myth 5: If a victim does not press charges you cannot be prosecuted
No doubt perpetuated by many a cop show in which the police reluctantly inform someone they’ve just arrested that the victim doesn’t want to press charges, it is the State which decides whether to pursue a case or not. Unless it’s a civil offence, and then you, as the plaintiff, can sue someone directly.
Your average person probably has no idea that there are, in effect, two completely separate court systems in the UK, although just to confuse matters more, Magistrates’ Courts deal with both civil and criminal cases, as does the Court of Appeal and the Supreme Court. They really should teach this stuff in schools (I’ve just looked it up).
Myth 6: You can’t be tried twice for the same crime
Oh yes you can. The 2003 Criminal Justice Act, which came into effect in 2005, abolished the double jeopardy rule for serious crimes, including those occurring before 2005, providing there is ‘new, compelling, reliable and substantial evidence’. This allowed the prosecution of Gary Dobson for the murder of Stephen Lawrence.
If you didn’t know this, where have you been?
Myth 7: Lawyers are overpaid
Clearly this is true for some lawyers, in particular commercial lawyers, and hourly fees don't do much to dispel the idea that lawyers are all rolling in it. But it is a myth that lawyers all over the place are getting filthy rich on the back of the state, despite what the press or the Ministry of Justice might say.
As far as legal aid is concerned, fixed fees per case, regardless of the number of hours it takes, are about £200 for welfare benefits, debt, housing, employment, family, clinical negligence and immigration. Although following the legal aid cuts that will drop to zero pounds.
Being a lawyer was the twelfth best paid job in the UK in 2011. Mind you, that’s behind finance managers, dentists, airline pilots, air traffic controllers and public service admin professionals (which must be a tad galling).
Myth 8: There’s a 10% discretion of you break the speed limit
Who knows where this one came from, but it seems a pretty crazy idea that you can exceed the limit by any amount and you won’t be prosecuted. What the police do have is a certain amount of leeway to let you off with a warning if you are only a little bit over. Going 80mph in the outside lane of the motorway is not a little bit.
Myth 9: There is no employment contract if there is nothing in writing
In fact even verbal agreements are binding. All the same, you’d have to be a pretty stupid employer not to ensure agreed terms are put in writing.
Myth 10: Posting something to yourself is proof of copyright
Stuffing something in an envelope and sending it to yourself never proved anything, not even that you had any Valentine’s.
Myth 11: It is illegal to marry your mother in law
It isn’t. But why would you want to?