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, 17 October 2016

On sexual history evidence

I was off to the BBC studios this morning for an interview about the use of sexual history evidence in rape trials in Scotland. The concern was prompted in part by the Ched Evans case in England, where the court permitted evidence of what the victim had reportedly said during sexual encounters with other men. This had then led to a story in yesterday's Herald where it was reported that from January to March this year 43 out of 57 applications to permit sexual history evidence of the complainer were granted in full and a further five in part.

It is clear that there is cause for concern here. The law on this point (and the aim of the law) is pretty clear. According  to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 it is not permitted to introduce evidence of previous sexual conduct of the complainer with a view to showing that the complainer was more likely to have been consenting to the act complained of or was not of good sexual character. This is subject to an exception where evidence might be led of specific occurrences which might shed light on the character of the complainer or any condition or predisposition that they might have. The application to lead such evidence must be made in writing before the start of the trial, and everything is subject to general requirements to respect the privacy of the complainer and that the probative value of the evidence should outweigh any prejudicial effects. 

The clear aim of these types of provisions since they were first introduced into Scots law in 1986 was to protect the complainer in sexual offences trials by limiting the capacity of the defence to question them about their prior sexual conduct where this was not relevant to the proof of the particular charge. However, as my colleague Michele Burman has demonstrated in research on the operation of the law, these provisions have actually had a perverse effect. Lawyers routinely make early applications to lead such evidence in sexual offences trials just in case they might wish to do so; these applications are routinely agreed with prosecution; and they are not being rigorously policed by the court. This tends to suggest that the figures quoted in the Herald are not evidence of a new development in the law, but merely confirms the situation which she showed has existed for some time.

So what is to be done? It is not clear to me that much would be gained by reforming the law. The grounds for excluding such evidence are set out in pretty clear terms already - and there is a reasonably clear understanding and acceptance, at least in general terms, of the aims of the law. There are always going to be some cases where sexual history may be relevant, and fairness to the accused requires that there be a mechanism for allowing this. There does, though, need to be a review of the operation of the law and some serious thought given to how the current situation might be addressed. It is not clear to me that we are dealing with the same situation as, say, 20 or 30 years ago, where there was significantly less understanding or tolerance of sexual freedom. The law has changed to reflect new attitudes towards sexual autonomy. And the way that sexual offences are investigated and prosecuted has been transformed in the wake of campaigning by victims organisations. So the framework within which the law is operating is very different. The question now must be to find out in which types of cases these permissions are sought, and the types of sexual history evidence that are led so as to engage with and challenge the practices that permit the undermining of our law.

Friday, 14 October 2016

On 'His Bloody Project'

Like many people I have been enjoying reading Graeme Macrae Burnet's wonderful novel His Bloody Project this summer. Without giving away the plot, the novel is made up of documents relating to the case of Roderick Macrae, a young man accused of murdering three people in the remote highland community of Culduie, near Applecross in Wester Ross in 1869. In addition to just enjoying the book on its own merits, for me there is the additional (and unaccustomed) pleasure of reading a novel based in the Scots criminal justice system in the 1860s.

The book starts with a series of witness precognitions (or statements) which are then followed by the 'confession' of Roderick Macrae as recounted to his lawyer, medical reports, an 'extract' from a (made up) book called 'Travels in the Border-Land of Lunacy' by the actual prison doctor, James Bruce Thomson, and then an account of the trial in Inverness, drawing on supposed 'journalistic' sources. This is a remarkable act of ventriloquism. Burnet expertly catches the tone of these different types of document and speeches. (There is one small inaccuracy, which is that a trial in the High Court of Justiciary in 1869 would have been before a single judge, rather than three sitting as a bench). The highlight for me was his reinvention of the character of James Bruce Thomson, who wrote extensively on lunacy (as it was known) and the hereditary nature of crime, and whose writings influenced later criminologists. Thomson did not actually write a book but, prompted by the novel, I have been doing some digging around in libraries and have found some of his writings  - and will write about these in a later post.

The book itself is (at least in part) modelled on two different literary forms. The first is that of the notable trials series. These were a series of very popular books published by Edinburgh publisher Wm Hodge between about 1905 and 1950. The main part of each book was a transcript of a particular trial - celebrated because of the notoriety of the crime or the criminal. These might be historical (the trial of Mary Queen of Scots or Sir Walter Raleigh) or of contemporary interest, but broadly reflected the early twentieth century fascination with criminal trial. These were then accompanied by an editorial essay, which reflected on the significance of the case. (I have written before about William Roughead, who was one of the best known editors).

The other model (which Burnet acknowledges) is Michel Foucault's I Pierre Riviere, having slaughtered my mother, my sister, and my brother.... This was the confession from an actual case that was discovered and published by Foucault and his collaborators in the 1970s when he was researching psychiatry and disciplinary power. There is one formal difference between the criminal justice systems of France and Scotland which Burnet manages well. In France, the confession was formally part of the evidence in the case and the trial. In Scotland (as in England and Wales) an accused person was not formally allowed to testify on their own behalf until 1898. This meant that an accused person was literally silenced in their own trial - unable to speak on their own behalf or to answer accusations against them - a position that was justified on the grounds that to allow such testimony would be to offer the accused person the temptation to perjure themselves. This led one French observer, Charles Cottu, of an English criminal trial in the 1820s to remark that the place of the accused might as well be taken by a hat placed upon a stick. In the novel, then, the confession is not presented to the court but is recounted to the lawyer - though not without questions accordingly being raised as to its authenticity.

I thoroughly recommend the novel (and indeed also I, Pierre Riviere and the notable trials series, for the real enthusiasts). It is wonderful to see that it has been shortlisted for the Man Booker Prize, bringing the book to a wider readership, and will keep my fingers crossed on the 25th October.

Thursday, 6 October 2016

On the Surjit Singh Chhokar case

Yesterday saw a momentous event in Scotland - the conviction of Ronnie Coulter for the murder of Surjit Singh Chhokar in 1998. Coulter was originally tried (and acquitted) for the murder in 1999, but was put on trial again this year following the change in the double jeopardy laws in 2011. The four week trial ended yesterday when the jury returned a verdict of guilty for the murder after deliberating for 10 hours.

The story of the case, at least in its early stages, was one of institutional racism and botched decision making. It was fairly clear from the start that three man had been involved in the incident that led to the killing of Chhokar - Ronnie Coulter, his nephew Andrew Coulter and David Montgomery. The Crown then had two separate trials, each of which collapsed when the men on trial blamed the others for the killing. This was heavily criticised by Lord McCluskey at the original trial of Ronnie Coulter. As a result the three men went free.

This was followed by three separate investigations into the failings in the case. The first was an internal investigation by Elish Angiolini (later to be Lord Advocate) into the handling of the case by the fiscal service. The second one, as the profile of the case was rising, was by Sir Anthony Campbell QC into the investigation and prosecution of the offence. And the third, and most damning, was a report by Raj Jandoo into institutional racism in the handling of the case. The Jandoo report found that there was evidence of institutional racism in the failure of the police to consider that the offence might have been racially aggravated, in the failure of the Crown Office to explain its decision making to the family, and in the courts to explain why it was that the trials had collapsed. These issues were to be addressed by the police and fiscal service, but nothing could be done at the time to bring the men to trial again. This changed with the reform of the double jeopardy laws in 2011, which allowed a person who had been acquitted of a crime to be tried again for the same offence, under certain limited circumstances.

The investigation remained open and this year the new prosecution was brought against Ronnie Coulter - with each of the other two men testifying against him. He in turn led a defence of incrimination - that the other men had committed the crime - and that they were blaming him because of a series of family feuds and to avoid their own liability.

The history of the case tracks the developments in Scottish criminal justice over the last 18 years - a period that coincides with the development of devolved Scottish government. One important change, I have already noted, was the reform of the double jeopardy  laws, but more important were two larger movements that suggest how Scottish criminal justice was modernising. The first was the increased recognition of human rights, and in this particular context, of the rights of the victim. There have been extensive developments in the law to protect victims as witnesses, to improve the service offered to victims in court, and to render the process of prosecution decision making more open and accountable to victims. The second development is the recognition of hate crime - including forms of racially aggravated crime. These map on to the serious deficiencies identified by the Taylor and Jandoo reports and their have been significant advances in these areas.

This is not to say that there are not still deficiencies - note the recent problems of Police Scotland - or that racist crimes may not still take place. But we can at least hope that victims and their families will receive better and fairer treatment from criminal justice institutions.

Finally, I would like to pay tribute to the family of Surjit Singh Chhokar, and to Aamer Anwar, their solicitor, whosetireless activism has done much to ensure that the case was kept in the public eye, that public bodies were made to account for their actions, and that ultimately the killer of Surjit Singh Chhokar was convicted.

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)