As we walk through our city centres and detect ahead the presence of a beggar asking for money, we invariably manage to find something much more interesting to engage our attention. The sky, for instance. Anything to avoid a meeting of eyes and an inevitable moral challenge, to us at any rate. But how we react is our choice. We might have our own criteria which determine whether or not we shall be charitable. If we choose to keep our loose change in our pockets or handbags we have a right to be protected from harassment, even the fear of harassment, as we walk by. The magistrate who jailed James Donaldson for three months after evidence from two police officers that he had seemed to alarm and cause fear to several women whom he approached for money late on a dark January evening clearly believes in that right.
Yet three of Scotland's senior judges threw out Donaldson's conviction, arguing that there was insufficient evidence to prove that the way he was begging amounted to a breach of the peace. Fear and alarm, they concluded, were inconclusive tests because they depended on the reactions of the alleged victims which were prompted by their different temperaments. In this case the alleged victims were all women, two of whom were elderly. The magistrate was a woman. The appeal judges were men. Was this significant? If it was, it should not have been.
The judges' conclusion about subjectivity clashes with one of the fundamental principles of the law: that you take your victim as you find him. If you hit someone who has an egg-shell skull and who dies after hitting his head on the kerb from injuries which those with a skull of normal thickness would walk away from, you are still guilty of a grave offence, culpable homicide. Relativism does not come into it, except to determine the exact serious charge.
Even the ''classic'' definition of breach of the peace which the judges chose in this case seems to us to show that the magistrate was right, since it states that something is a breach of public order if it might lead to someone being alarmed or upset. Such was the reaction of these women. Yet they had, in effect, no legal protection. There are more beggars on our streets and, while we do not believe that simply sweeping them off the streets is the answer, we do need a clearly-defined strategy for dealing with the problem. Women in particular are vulnerable in the face of aggressive begging and they should not have to put up with it.
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