Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 7 September 2015

On Making the Modern Criminal Law

The blog has been dormant for a long time, and this is because I have been working on a larger project - finishing a long book about the development of the modern criminal law. I am very pleased to say that the manuscript is now complete and with the publishers, and this means that I will now resume posting on a regular basis.

First a word about the book. It is called Making the Modern Criminal Law. Criminalization and Civil Order, and it will be be published by Oxford University Press in January 2016. (There are more details on the OUP website, and you can even pre-order the book). I will be writing more about the book over the coming months as well as covering the usual mixture of topical and historical stories.

Sunday, 15 June 2014

On JS Mill and the harm principle

An often overlooked feature of John Stuart Mill’s famous statement of the ‘harm principle’ is that it refers to the ‘civilised community’: “the only purpose for which power can be rightfully exercised against any member of a civilised community, against his will, is to prevent harm to others.” So for Mill the operation of the harm principle is conditional, or at least dependent, on the existence of the civilized community. 

But what did Mill understand by this term? A useful starting point for understanding this is Mill’s essay on civilization, published in the London and Westminster Review in 1836. Mill understood the term ‘civilization’ to have a broad and a narrow sense. The broad sense was the way in which we might speak of a society as more perfect, as “happier, nobler, wiser”, as in the civilization of ancient Greece or Rome. The narrow sense was comparative: the term could be used to distinguish a wealthy and populous nation from savages and barbarians, but in doing so could also recognize that the progression of civilization might be accompanied by new miseries or give rise to new kinds of vices. 

Focusing on this latter sense Mill argued that the degree of civilization could be measured by the degree of co-operation in a society: “Wherever, therefore, we find human beings acting together for common purposes in large bodies, and enjoying the pleasures of social intercourse, we term them civilized”. Savage society was violent and power could be exercised in an arbitrary way. In a civilized society security, which he understood as the protection of individual interests, would depend on the collective arrangement of society, rather than on individual strength or courage. Indeed for Mill this was the measure of civilization, as he want on to argue that “There is not a more accurate test of the progress of civilization than the progress of the power of co-operation”. Co-operation in his view was something that was learned in the progress of civilization – the division of labour was, in his phrase, the “great school of co-operation”. Civilization brought about the diffusion of property and intelligence throughout society and taught self-control and compromise, the sacrifice of individual will to a superior purpose. 

Why does this matter? Its importance, I think, lies in the sense in which Mill was establishing preconditions. The harm principle does not apply to all, but only to those individuals and those societies which qualify. It must be understood in this sense not as a simple statement about the limits of state power, but in terms of a more complex relation. The operation of the ‘harm principle’ was linked to the division of labour and the degree of social progress, both in the sense of whether or not it was appropriate to a particular society or group within that society, and in the sense that civilization could give rise to new vices or harms. And of course the important questions then becomes those of who is to judge whether you meet the entry criteria for the club of civilization and according to which criteria is this judgment made. 

I have two further comments about this. First, it is clear that this judgment was made on the basis of cultural assumptions about the the superiority (and civilized character) of western societies. So for Mill this justified, in particular the British Empire in the Indian subcontinent and Africa as a civilizing project. Imperial rule could be despotic because the barbarians could not govern themselves

Second, once you are aware the way this distinction, you will be surprised at how often it is still used even in the present day as a means of justifying non-liberal measures. Rioting is uncivilized behaviour and the police are the the thin blue line which stands between us and the breakdown of civilization - so liberal principle s of law may be suspended. Once you look you will see many examples of this kind, which makes you think about the continuing importance of the idea of civilization.

Tuesday, 1 April 2014

On proportionality, harm and order

Patrick Colquhoun (1745-1820) is famous as a penal reformer and one of the founders of the modern police. He began his career as a merchant in Glasgow before moving to London in 1785, becoming a magistrate in the East End of the city - an area that covered the docks. It was his work here that prompted him to write his most famous work, A Treatise of the Police of the Metropolis, which was first published in 1796. In this book he argued for a new system of police and criminal law to address the problem of theft from the docks and the welfare of the community more generally. His proposals were adopted and a new river police force established in 1800, that was to become one of the models for the creation of the metropolitan police in 1829.

The following is quote from his book:
“It is the triumph of liberty when the criminal laws proportion punishment to the particular nature of the offence … In offences which are considered by the legislature as merely personal and not of the class of public wrongs, the disproportion is extremely shocking. If, for instance, a personal assault is committed of the most cruel, aggravated, and violent nature, the offender is seldom punished in any other manner than by a fine and imprisonment, but if the delinquent steals from his neighbour secretly more than the value of twelve pence, the law dooms him to death” (Colquhoun, Treatise on the Police of the Metropolis 6th  edn. 1800 pp.30 & 35)
This is interesting as comment on eighteenth century criminal law. Most obviously it is a critique of disproportion in punishment and an argument for reform. The eighteenth century law is criticised for brutality (that a thief is punished by capital punishment) and for disproportion (that an aggravated assault is scarcely punished at all, and certainly not capitally). This fits with the well known picture of eighteenth century criminal law as  brutal and arbitrary.

But look more closely and there is something even more interesting going on. First, he is pointing out that interpersonal violence is not regarded as a public wrong, but something that can be settled between the parties with, at most, some lesser form of punishment. This seems alien to our modern understanding where violence is always a matter of public concern, in some way the archetypal public wrong. It is perhaps hard for us to imagine a criminal law where violence is not centrally regarded as a wrong – but that is how eighteenth century lawyers thought.

Second, it is implicit in any claim about disproportion that there is some other truer measure of proportion or the proper relation between things. Here, for Colquhoun, the proper measure is public wrong in the sense of harm to the community. The idea of harm in this sense can become for Colquhoun a measure of commensurability between different types of wrongful conduct, allowing them to be ranked in terms of seriousness. 

Finally, this is linked into the bigger claim, taken from Montesquieu, that there is a link between proportion and liberty. The proper order of the criminal law will secure a broader order. The reform of the criminal law is thus linked to the refoundation of society.

Sunday, 30 March 2014

On overcriminalisation

We often like to think that the police are always keen for new criminal legislation, because it will give them a greater range of 'tools' from which to choose when doing their job. And we also often think that the tendency to over-produce criminal legislation is a recent one. In this connection then it is interesting to read the comments of C. F. G. Masterman, Liberal politician, chronicler of the state of England, and Parliamentary Under-Secretary at the Home Office from 1909 to 1912.

He recalled that Home Office principles relating to restrictive legislation were
(1) ‘Do not, unless forced to do so, make crimes out of things which are not crimes already’;
(2) ‘Do not introduce proscriptive legislation beyond the standard of conduct which will be accepted by the general feeling of the country’;
(3) ‘Do not throw upon the police a burden greater than they can bear’
(from S Petrow, Policing Morals, Oxford 1994, p.42)

Tuesday, 4 March 2014

On the Oscar Pistorius trial

I expect that we will be hearing a lot about the Oscar Pistorius trial over the coming weeks, but I doubt I will read anything better than this, by Margie Orford - a perfect explanation of how doctrines like self defence require a context in which they make sense.

Friday, 28 February 2014

On sexual offences

The criminal law has always regulated sexual conduct in some way. However, it has not always been the same kinds of conduct that have been regulated, or regulated in the same way, in every society, for the same ends. Even the most cursory historical survey suggests that there has been considerable diversity in the kinds and manner of regulation of sexual conduct by the criminal law. This raises questions when we come to think about how sexual offences should be regulated by the criminal law. The tendency in modern thought is to see this as a distinct area of law, to look for an organizing principle or interest that should be protected, and then to try and systematically apply this to the identification and definition of possible offences.

One immediately striking feature of the law in the area of sexual offences is that the idea of a distinct body of sexual offences is relatively novel. By this I mean that the idea of sexual offences as a distinct sub-field of the criminal law, organised around a the protection of a distinct interest or wrong or according to a central governing principle, is a fairly recent development in the criminal law. The term sexual offences was not used in any legislation in the UK until 1956, and not in the US until the Model Penal Code in 1962, and, while occasionally used as a descriptive term in treatises before this date, it was little more than a usage of convenience, a way of describing a sub-category of offences against the person. It was not until the 1970s that the idea of sexual offences began to change from being a descriptive grouping to something that reflected an underlying organizing principle - that of the protection of sexual autonomy. 

This led to some notable instances of decriminalization of consensual sexual conduct seen as inconsistent with the idea of sexual autonomy - notably the decriminalisation of homosexual conduct - and this is usually seen as the major development in this area. However, arguably the larger impact has been in terms of increased criminalization, as the recognition of this distinct interest in sexual autonomy has led to the identification of a growing range of ways that this can be infringed or interfered with. Recent legislation on sexual offences in the UK has thus criminalized voyeurism, sexual grooming of children, 'sexting', sexual interference with a corpse, possession of extreme pornography, sex with trafficked women and many more. The point here is less that of whether or not these should be crimes (many of them already were, but were not seen as sexual crimes), than to ask the question of how it is that they come to be classified as sexual offences - and more broadly to ask whether the recognition of the category might not have an expansionary logic.

This suggests that before we can take the idea of a category of sexual offences for granted and think about how it is best organised or regulated, it is necessary first to ask about how it is that certain behaviors been grouped together under the rubric of sexual offences, about the kinds of connection or thematic unity that makes this grouping possible, and about the consequences for criminalization of thinking in categories of this kind.

Wednesday, 29 January 2014

On theft and rubbish

This story, reported in the Guardian this morning, raises some interesting issues. According to the report, three men were taking items from a rubbish bin behind a supermarket to a value of £33. They had climbed over a wall to get to the bins and were arrested as they left the area. Initially they were apparently to have been charged with burglary, but now are being charged under the Vagrancy Act 1824.

It is easy to see why burglary might not have been an attractive charge here. The offence of burglary is defined in the Theft Act 1968 s.9. Basically it requires entering any building or part of any building with intent to steal (or commit other crimes identified in s.9 subsection 2). Climbing a wall to an enclosed back yard would satisfy the first part of this definition; the problem would be with proving an intent to steal. There are two issues here. First, the prosecution would have to prove that property belonging to another had been taken (s.5), and then they would have to prove that it had been done with a dishonest intention (s.2).

The problem with the first of these is that it can clearly be argued that property which has been thrown out no longer belongs to anyone - or that the fact that it is in a bin is at least prima facie evidence of an intention to discard the property. So the prosecution would have to prove that the food was under the possession or control of the owner. If the food had been contained in streetside bins that were accessible to the public this would surely be impossible; if they were in an enclosed yard then possession or control might be easier to establish as they would not pass out the the supermarket's control until the contents of the bins were physically removed.

However, even if this test were met, it would be difficult to establish dishonesty. It is just conceivable that the prosecution could satisfy the legal test - set out in s.2 of the Act and in the case of Ghosh). This is basically a matter of whether you understood that it would be dishonest or wrong by common standards, even if you believed your condct was right or justifiable. However, if the food were removed because of hunger, or even as a protest against supermarket practices of discarding food which could still be consumed, this would at the very least require the court to engage in a discussion of the legitimacy of such practices and the justifiability of the motives of the defendants. And if went to a jury, as would probably happen, then there is authority that dishonesty is a matter of community standards and it is quite possible that a jury would be willing to acquit.

So we can see why burglary would be difficult to prove. But the Vagrancy Act 1824? The long title of the Act gives a flavour or its style and scope:
An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England
Most of the Act has now been repealed. It was notorious in the 1970s and 1980s as the basis for the so-called 'sus laws' - powers to stop and search which were used disproportionately against the black community. Remaining powers include that of the Crown Court to commit any "incorrigible rogue" to prison (s.10), and a general power under s.3 to imprison chapmen, pedlars, prostitutes, beggars and others deemed idle and disorderly persons. (I'm not making this up - you can read it here).

It would appear that the charge would be under s.4 of the Act. This is basically a long list of undesirable conduct, but includes the phrase "every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose" (a form of criminal trespass). An offender will be deemed a rogue and a vagabond and may be committed to a house of correction for up to 3 months. 

Leaving aside the question of whether there are any houses of correction anymore (we call them prisons these days), this is all very bizarre. The Act is nearly 200 years old, and nothing about it suggests that it is appropriate to our times. If the problem is with the unauthorised entering of the yard then this should either be recriminalised as a specific offence, or probably more appropriately deal with by non-criminal means - speaking to the offenders, or making discarded food available in some other place or giving it to food banks. This is a disproportionate response and it is hard to what what public interest there might be in prosecution.