The “voice”
of
independent accommodation providers

Now that you have had chance to take a look at a couple of issues that I think worth mentioning, I am wondering if anyone has a burning issue that they would like to share. You can post your problem here, or you can write to me personally, and if you prefer, I will talk about your law matter without revealing your identity.

How many of us believe ourselves to be in the right, but are frustrated in our attempts to exercise our rights.  Several of us, probably.  Have you ever considered why that is?   It is a simple fact that every time the rights of one person are extended, the rights of another are reduced.

It is my right to privacy, and I do not see the need for CCTV surveillance at the level it has reached today.  It is your right to be protected.

I like to see the night sky and I do not see the need for very bright street lighting that hides the stars.  Again it is your right to be protected.

I do not smoke and I am happy at the new legislation under Smokefree England, you may feel that it has infringed your rights.

Sometimes our Law is changed in favour of the group that shouts the loudest, it may not always reflect the will of the silent majority.

Sometimes I am in the majority, sometimes I am in the minority.

I recall a problem that was faced by some village and church halls nearly a decade ago, when under the newly introduced Disability Discrimination Act, the committees lowered the emergency opening bars on their exit doors, only to find that pre-school aged children attending the playgroups who routinely hired the halls, were able to escape.  How do you reconcile the right of a disabled person to escape unaided in the event of fire, against the right of a toddler not to be able to run out of the hall in front of a passing car?  You can’t.

Do you have an example of shifting balances of rights that has affected you personally, would you like to air it?

These difficult situations come about largely because it is seldom possible to frame rules in such a way that not every scenario is either included or excluded as appropriate, although the Parliamentary Draughtsmen, who are normally made up of the country’s most senior lawyers, do as a rule, do their best to import clarity into legislation.  Nevertheless, there will always be some situations that arise that fall to the Courts to determine.  Inevitably inclusion of situations that are just plain silly  if included, will lead yet again to the Law being called an ass.  Whilst these situations are often recognised by legal commentators fairly soon after the introduction of new Statutes, quite often the area remains grey for a very long time.

Where situations don’t quite fit the new legislation, whether they are included or not, they often fall to be decided by the Courts as either being, or not being within the scope of the Act.   When clarification has ended up being long overdue, it may perhaps be because the situation already envisaged by the legal commentators has not arisen for months or even years, or perhaps because it has arisen but neither side is sure which way the Court will view the matter, and neither wants to incur the inherent costs of losing.  When the latter occurs, all too often, a grudging compromise is reached, or the side with the most funds at his/her disposal is able to bully the other side into financial submission.

Occasionally Parliament will set aside time to amend anomalies in a Statute to provide clarity, but in most cases the scenario that falls outside the box will be seen by Parliament as “not likely to occur in sufficient frequency to justify Parliamentary time and the public purse being dipped into”, so nothing is done to resolve the grey area.

The example I gave above of the difficulty faced by village and church halls committees in deciding whether to lower their emergency door bars is typical of the situation that many of us find ourselves in.  I suspect that most halls committees followed the legislation set out in DDA, because that was what had become enshrined in law, whereas, the alternative was not. I  should add here that DDA does provide for exemption if unpractical, but that is largely geared towards the fabric of the building where the building does not allow for structural alteration in order to comply, or where the costs would outweigh the benefits to a substantial degree.

There are of course lots of other situations where you might know you are in the right, but someone will force you to back down, and our roads are one such example.  It might be our right of way, but if pulling out just because it is our right of way, where someone else is proceeding when it is not their right of way is likely to result in an accident, we are hardly likely to choose to exercise our right.

The Law prohibits murder (as it should) but it cannot prevent murder from taking place.  There will always be times when no amount of legislation will prevent a particular occurrence although it goes without saying that we all have the right not to be killed unlawfully.

Self Defence is a particularly interesting topic.  The law that underpins the right to use self defence places those that resort to it in a vulnerable position.  The test if another person is injured, or dies, as a result of you defending yourself against them is “ was the level of force used in self defence appropriate to the circumstances that the person who used self defence believed them to be?”

You simply cannot pinpoint the level of self defence required in the heat of the moment,  but you may only use sufficient force to defend yourself to the extent that is required.  The moment you cross that point, you become the aggressor.  In other words if you use more force than is absolutely necessary, you can no longer rely on a defence of self defence.  Most people would agree that the dividing line at its very centre is a shade of grey.  It will fall to a court to try to determine black or white (guilty or not guilty) in the centre of the grey.

Have you ever sought advice from a Solicitor only to be told that it was a grey area?  If so, what was the grey area concerning, and why was it a shade too grey to be black or white?  I would love to hear about it if I can persuade you to tell me.

Carol

Tags: Clarity in the Law, DDA, Self Defence

This entry was posted on Tuesday, March 16th, 2010 at 4:54 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.