Ignorantia Juris Non Excusat Reconsiderd.

A few months ago, a boy was labelled a racist for enquiring if a school mate was brown because he came from Africa. This boy was 7.

Although in agreement that racism is a form of abuse that has to be heavily minimised and stamped upon, is it really legitimate to categorize this young boy’s curiosity racism?

Perhaps it is too pedantic to look to legal maxims as an illustrative point in this matter taking into consideration that the boy was only 7 and no charges were brought but it got me thinking. If we are to assume for the time being that the boy was 17; looking strictly at the maxim: ignorance is not an excuse; this comment would be deemed an offense and possible charges could be brought. There does not seem to be any indication of a malicious intent. A boy at 17 would be held to possess a more in depth knowledge of what is racist or not, but this is purely assumption. An understanding of such concepts as racism or disability will mostly come from experiences. A child unexposed to such matters will be more likely to say something offensive and perhaps even, unintentionally. Is it fair for a child or in fact anyone that is ignorant to breaking the law to be guilty if they do not know what they are doing is wrong?

I realise that this maxim serves a fundamental function within the legal system. It encourages knowledge in the law; an understanding of it and therefore a stricter application leading to more equitable decisions and therefore transparency of the law. All very important. I don’t dispute that. But there is food for thought in whether applying this maxim religiously is in fact serving the best interests of the public. It is a tall feat to ask of lawyers never mind of the general public to remain up to date in an ever changing and evolving society with laws being proposed and passed most days. It is the job of the lawyer to remain up to date, but is it the job of the average person? Is it the job of the lawyer to educate them? It seems that the Government may be navigating cleverly around the colossal task of providing a system whereby before anyone may be subjected to a law; they must be made aware and understand such a law failing which would result in new laws probably never being passed. So it is understandable, but is it right?

It is worth considering that with this maxim cemented within our legal system, we are bound by any laws that Parliament seek to pass; anything at all despite not knowing of it or understanding it. I find that thoroughly disconcerting. I guess we should all have studied Law.

I can’t help but think, though more difficult, looking to intent in circumstances such as this would serve a better picture of justice than wholly relying on “ignorance”. Quoting from the infamous case of Cadder, Lord Hope said “... there is no room... for a decision that favours the status quo simply on grounds of expediency.” Although this is in reference to another matter altogether, the same thought process should be applied to that of this maxim. Simply because it has been rooted in our legal system for years and that the alternative would require a more rigorous analysis of the matter is not excuse enough for the blind adherence to customary practice.

Is the Legal System Failing us?

I attended Angus (or there abouts) today as part of a site visit alongside a solicitor. The case is concerned with rights of access and the maintenance of four roads leading to and from the client’s property. Aside from the fact that the daft lawyer forgot to mention or attend to the registering of these rights in the appropriate register, this pending case (that may not even go to proof) highlights, in my opinion, the weaknesses in our current legal system. A system that is supposed to be help the “little guy” as well as the “big guy”; a system that is supposed to attend to and treat equally all those it seeks to protect; a system that promotes justice; a system that has failed at just that.

The client’s father owned a huge amount of land. It covered acres and acres of space and a fair few houses including a castle, which in its “hay day” was open mouth –worthy stunning but now sadly at the hands of the defendant resembles ruins after a bad storm due to shear lack of maintenance. Upon the father’s demise, the property was split and sold off in chunks. The defendant’s “chunk”, as it where, encompassed four roads for which he has a duty to maintain which he has not done. Entry through one of the roads’ into the client’s property is covered by greenery and dotted with a car grinding pot holes. We struggled in a Honda Civic. I wouldn’t stick around if it was snowing; that’s for sure. This is the best of the 4 roads. The others have been blocked or deemed too dangerous, that delivery drivers, post men and school buses have opted for different routes altogether. The client insisted on taking us down one of the more direct routes to the A90 in his X5. A route he used most frequently before causing damage to his car. I think I was lucky to successfully avoid concussion as we paraded through what were more like empty swimming pools as opposed to pot holes. To say it was a bumpy ride may be an offense in itself due to shear understatement. Not to mention that the defendant has ripped out drainage; this is causing more damage and making it unbearable in heavy downpour due to flooding. The nuisance caused by this neighbour has been endless: shouting verbal abuse, purposefully blocking entry to properties the client owns, having timed races in sports cars up and down these roads (baring in the mind there are children in the area and there was no pre warning of such a carry on); setting up a fire 4 and a half feet away from the client’s property door causing his shed to melt... this list was endless but basically stemmed down to the defendant’s persistent sickening hobby of making things as difficult as possible for surrounding neighbours

The client was clearly disheartened. Why has nothing been done? Why is this man allowed to continue in his shenanigans? The question has to be asked squarely in the face of our legal system. The defendant has been clever. When a court date is set, he half heartedly cuts back a bush or two and sits a large amount of gravel on his property as proof that he intends to fix drainage; the Sheriff has fallen for this among other ploys. This has gone on for 9 years to no salvation of the client who has lost faith in the council, the legal system and the police. This is wrong and so unbelievably shattering to hear for a law student who sought out to study law to help people like him. Not only has he been wronged by the authorities but by the very people that took stance to represent him thoroughly and properly, ie lawyers. I have no idea why this case wasn’t given the due attention it was; I couldn’t possibly speculate but it shouldn’t have been.

I watched this man rattle off endless exhausted methods of trying to resolve this dispute over the 9 years; each time planting his head straight into a brick wall and no progression of the case by his lawyers saw his faith in the legal system deteriorate. Practically as knowledgeable in this area as a fully qualified lawyer, he spewed out Latin maxims and possible arguments for he has had to rely on himself due to being consistently let down by those that should have protected him. He drafted his own minute of agreement and watched helplessly the defendant and his lawyer delete and edit as they pleased as he was backed by no representation by his firm at that time. Complaints to the Law Society of Scotland saw them rule that it was not “grave” enough. What is grave? Death? The very fact that a firm sought to pursue our client’s case then failed miserably at progressing the case and near enough abandoned it is “grave”. It’s grave to our client’s case. He stands in a weaker position because of this firm today and that firm shows no scars unlike this client.

It’s an apt depiction of our beloved legal profession. The little guy is still being trampled on as his case shows little hope of achieving anything. But the man has clearly suffered at the hands of this defendant and the legal system has remorselessly stood by and watched it happen. The legal system has failed him, and by failing him has failed me and damages the profession. More needs to be done to ensure loopholes are tightened within the law and that representatives of our legal system do a job to their upmost ability. Without this, the legal system resembles a waiting game. Who will cave first, the little or big guy?