Is it in force?

[courtseal]

I wish to have access to Halsbury's "Is it in force?", or LexisLibrary, or Westlaw. Any suggestions?

[atticus]

You could try a good reference library. The government legislation site is usually fairly reliable.

Are you looking for anything in particular?

[courtseal]

I'm interested in section 42A of the Family Law Act 1996 ("Offence of breaching non-molestation order").
Also, sections 113A and 113B of the Police Act 1997 ("Criminal record certificates"/"Enhanced criminal record certificates")(England and Wales).
Unfortunately, the reference section of Birmingham central library is unable to assist.

[courtseal]

I think that section 42A of the Family Law Act 1996 is not in force. The section would be inserted by section 1 of the Domestic Violence, Crime and Victims Act 2004. S. 1 DVCVA 2004 would be commenced by the Domestic Violence, Crime and Victims Act 2004 (Commencement No. 9 and Transitional Provisions) Order 2007. However, the order has an error in its introductory text. I'd be interested to know what others think.

[courtseal]

The opening words of the aforementioned Order are: "The Secretary of State makes the following Order in exercise of the power conferred by section 60 and 61of the Domestic Violence, Crime and Victims Act 2004(a):"
The term "61of" is not defined, and if more than one section is being referenced then the word "sections" ought to be used. Curiously, errors by law professionals seem to always occur in pairs. I wonder why?

[PallasAthena]

I think you need to explain what the substantive issues are rather than waste your time with straw clutching.

Look at section 6 (c) Interpretation Act 1978 regarding singular/plural.

[atticus]

"61 of" are 2 short words that, in the context, are a clear reference to section 61 of the Act of Parliament in question.

The introductory text is mere commentary. It is the text of the statutory instrument itsef, beginning with "1. This Order may be cited as the Domestic Violence, Crime and Victims Act 2004 (Commencement No. 9 and Transitional Provisions) Order 2007", that has legal effect.

Going back to the introductory text, this tells you that sections 60 and 61 of the named Act give the Secretary of State powers to make orders, and that this statutory instrument is made under those powers. You might go back and check whether those sections do indeed give power to make such orders. It would be odd if they do not, but you are of course free to check.

[courtseal]

Look at section 6 (c) Interpretation Act 1978 regarding singular/plural.

I looked at section 6 of the Interpretation Act 1978. The section is concerned with Acts, so I doubt that it is relevant to an Order.

[PallasAthena]

You need to read the whole Act. s23 makes clear that it applies to all subordinate enactments.

Are you facing prosecution under s42A Family Law Act 1996 for breaching a non-molestation order? Not my area of expertise but someone here may be able to help if you give us more details.

A defence that there is no such law because the Commencement order should have had a bigger space between "61" and "of" in the commentary in the Introductory text is highly unlikely to succeed. There is no conceivable ambiguity about what the Introductory text means.

[courtseal]

s23 makes clear that it applies to all subordinate enactments.

The introductory text is preamble. It is not part of an enactment.

There is no conceivable ambiguity about what the Introductory text means.

Besides "61of", there is a reference to a "section" (singular). I do not know what the writer's intention was.

Are you facing prosecution under s42A Family Law Act 1996 for breaching a non-molestation order?"

That would be impossible.

Proceedings, seemingly under section 42A of the Family Law Act 1996 ("s 42A"), take place. Every element of those proceedings contains errors. Law practitioners in the proceedings seemingly believe that they may hear factual witness evidence, disregard various errors, and rely on the details that remain. But the depth of the errors might not be known. It might be that if all errors were removed, no evidence would remain.

In this way, a finding of guilt might be obtained where there was no mens rea, no actus reus, and no offence. The effects of a finding of guilt without an accompanying conviction would be similar to those of a conviction. Unlike a conviction, it would not be possible to appeal.

"I think you need to explain what the substantive issues are rather than waste your time with straw clutching."

"A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in such proceedings. “Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978 (c. 30)." [s 42A(6)]

[PallasAthena]

You don't appear to like the advice you are given on here so further comment is pointless.

If you believe s42A is not valid law just go ahead and.argue that point in court. It's what the judge thinks that matters, not what anyone here thinks.

[courtseal]

You don't appear to like the advice you are given on here so further comment is pointless.

I would be delighted to be wrong about this. I want a justice system that is fair, transparent and predictable, and which resolves disputes not by exercise of discretion but by application of the law.

If you believe s42A is not valid law just go ahead and.argue that point in court.

I doubt that any individual will appear in a court due to s 42A. If I appear in a court-house due to s 42A then I might raise the following points:

a. It would not be possible to subject police officers or law practitioners to quasi-arrests or quasi-court proceedings. Shouldn't our justice system apply equally to everyone?

b. Given the opaque nature of quasi-justice, can its effects be meaningfully assessed? Is it possible to know whether quasi-justice has been used disproportionately in cases that involve individuals from ethnic minority groups?

c. Law should be accessible, intelligible, clear, and predictable. Section 112(1) of the Police Act 1997, in the form published on legislation.gov.uk, states, "The Secretary of State DBS shall issue a criminal conviction certificate to any individual who..." This is neither intelligible nor clear. Should applications for criminal conviction certificates be made to the Secretary of State for Justice?