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.

Wednesday, 30 November 2011

On the decline of violence

There has been much discussion of this topic in the media recently as a result of the publication of the new book by Steven Pinker. The main claim of the book, and the one that has generated most comment, is that violence - in wars, pogroms, slavery, genocides, murders, assaults and executions - has declined over time and that, relatively speaking, we live in a more peaceful and civilised age. The book then discusses the social and psychological reasons why this long term decline has taken place: how the 'better angels' of human nature (empathy, self-control, a moral sense and reason) have slowly exerted control over our inner demons. The claim is backed up with extensive graphs and tables that seek to show that, in proportionate terms, various wars or killings in past ages were more devastating and violent than any of the catastrophic wars or genocides of the twentieth century.

I struggle with the main claim, at least in so far as it relates to modern wars. Pinker may be right with his slightly odd comparative tables, which suggest for example that the First World War is only 16th in the table of historic atrocities (now headed by the An Lushan Revolt and the Mongol Conquests - see p.195). But surely in some way this misses the main point often made about twentieth century wars, which is that it is the peculiar combination of the advance in technological capacity and the genocidal ambition which makes contemporary wars and massacres so devastating. There may be less violence in absolute terms, but that does not tell us anything about the meaning of that violence.

Norbert Elias
But what about the view from criminal law? Here we encounter the more modest claim about the long term decline of criminal violence. Here the argument is more credible and the conclusion less suprising in view of the fact that Pinker is drawing on the work of historians of crime which has pointed to the long term decline in the homicide rates, the decline in the acceptability of public violence, the growth of a more humanitarian sensibility in punishment and so on. Much of this work has been inspired by Norbert Elias' The Civilising Process, and Pinker acknowledges his debt to Elias' work. Elias argued that the civilising process was a combination of two trends. On the one hand, there was the development of a new kind of psychological sensibility, illustrated by the growth of manners which changed the way that people acted in public and private. And on the other hand, the growth of states brought a pressure to towards peace and civility. In the sphere of crime, then, as individuals were learning to curb certain impulses towards violent behaviour, the state was simultaneously conducting campaigns against the carrying of weapons in public, duelling, forms of public brawling, excessive drinking and so on.

While this development is more uneven than a brief summary allows, the general conclusion that is drawn is that there is a more or less steady decline in forms of public and private interpersonal violence and in criminal activity. However, I do wonder if the picture is more complex - and that, even if we accept the broad thesis, it is not clear what this might mean.

One concern here is that it all depends on the definition of violence. These long term historical surveys tend to concentrate on homicide, as the most extreme form of violence - for this is where records are most complete. But violence can take many forms, and it is conceivable that as homicidal violence decreases, other forms of interpersonal violence or abuse might increase. And in the law the definition of violence has been expanding to include various forms of physical and mental abuse, psychic harm, attacks on identity (hate crime again), so that while there may be a long term decline in physical violence, the broadening definition of violence may actually mean that more conduct is criminalised. The outcome of this might even be that, paradoxically, as certain forms of overt violence decline the sense of insecurity, and hence the demand for criminal law, can increase.

This should also lead us to reflect on the role of the criminal law in this process. Has it contributed to the decline in violence? Doubtless criminal lawyers would like to think that it has, but the picture is a bit more ambiguous. Pinker's explanation says little about law directly. Human rights are viewed as having played a role in increasing awareness of certain wrongs and in framing disapproval of, and responses to, atrocities. And there are implicit legal values in the account of the state, of moral reasoning and of empathy. But as in Elias' account the criminal law plays a supporting role rather than being directly instrumental in bringing about social change. This might do violence to many criminal lawyers' understanding of the importance of their discipline, but should also encourage a sense of perspective in thinking about what can, and cannot, be achieved through the criminal law.

Friday, 25 November 2011

On the abduction of women

Although it is sometimes argued that the content of the criminal law is in some way universal, it seems that often a particular combination of circumstances - legal, social, cultural - can lead to criminal practices developing in a particular way. This seems to be the case with the abduction of women in Ireland in the eighteenth and nineteenth centuries.

Here the practice seems to have developed of men more or less systematically abducting women and raping them in order to force them into marriage and obtain the land or money that came with the dowry. What is perhaps even more surprising is that such conduct seems to have been in certain ways tolerated by the religious and legal authorities: forced marriages conducted with the abductee were recognised as having legal standing; magistrates were advised to encourage the parties to marry, notwithstanding the occurrence of rape and violence; prosecutions were abandoned by the families involved; and in all but a few cases (where larger estates or greater sums of money were involved), the penalties on conviction were relatively light. And perhaps most surprising of all, this was a practice that survived at least into the early years of the twentieth century.

Why should this practice have developed in this way in Ireland? This was the question discussed at a seminar I attended yesterday by Maria Luddy of the University of Warwick, at which she presented her research on this topic (which I summarise above). The circumstances are surely complex, but it was suggested that it was a peculiar combination of rigid law on the ownership and transmission of property, the economic motivation of gain, and the fact that chastity was valued so highly that the women abducted frequently had little alternative but to marry. All of which was further supported by inadequate law enforcement and the collusion of the authorities. But given these circumstances it is perhaps also remarkable that the practice does not seem to have developed on such a widespread basis in Scotland - or at least as far as we know - where at least until the end of the eighteenth century legal authority was also comparatively weak in remote areas of the country. Hume cites a case from 1681 (where a royal pardon was granted) and two others from the 1750s. Burnett (writing in 1811) cites a number of additional cases: from 1616 (involving the abduction of a boy), 1673, 1744 and 1750. This suggests that the practice was not unknown in this period, even if it did not become as widespread as in Ireland. It may be that the legal authorities were stronger (at least after the reform of Heritable Jurisdictions in 1747), and laws more strictly enforced, and is almost certainly the case that there were further incidents of abduction which did not come before the courts. However, it is certainly surprising that this practice (which was the subject of legislation in England as late as 1828) did not register more strongly.

This also made me wonder about the legal basis of the crime in Scotland. While in English law the crime seems to have its basis in statute, in Scotland it is a common law crime. Hume is typical in treating forcible abduction and marriage at the end of his chapter on rape. He points out that, while in Roman law it appears that abduction (rather than rape) was the central crime, the Scottish practice seems to have required that the abduction should normally have been accompanied by rape - though he comments that abduction alone would still be criminal. This was based on the discussion in the case of Gray in 1751 where it was held that abduction was still a crime in the absence of force or violence, but not capital. Burnett follows a similar path, placing his discussion of the crime between that of rape and that of other types of abduction or unlawful imprisonment - understood as a usurpation of the authority of the state. (The stealing of achild was even recognised as the separate offence of plagium). And the later authorities follow suit.

The crime, however, has never been abolished, though there is no suggestion of any prosecutions after 1750. Abduction continues to be discussed as a crime in the books, though in the context of election offences and the abduction of children or other forms of unlawful imprisonment. My guess is that otherwise the focus came to be on the rape, as a sexual offence with a weaker link between chastity and property, with abduction being seen as an aggravating circumstance. There are perhaps now parallel offences emerging in the contemporary law relating to people trafficking and forced marriages and it might be interesting to think about these in the context of these older offences and criminal practices.

[Added 28th November: By a strange coincidence, after posting this last week I found out that the Forced Marriage (Protection and Jurisdiction) (S) Act 2011 comes into force today. The legislation criminalises those who breach protection orders andm akes it easier to nullify forced marraiges. It is instructive to look at the justifications for the legislation, for while this ostensibly criminalises the same sort of conduct (forced marriages) as the old common law offence, it is justified (as might be expected) in terms of allowing individuals to express their own individual wishes and consent, rather than seeing women as a form of property who might be carried away.]

Tuesday, 22 November 2011

On Edinburgh detectives

Writing about the ascent of the detective last week prompted me to go back to the work of James McLevy, one of the original police detectives in Edinburgh, who published his memoirs and reminiscences about his career in several popular books in the 1860s.

Ken Stott as Rebus
Of course, to mention the Edinburgh detective today is to call to mind the character of Inspector Rebus, the creation of Ian Rankin bestselling novels, but there are huge contrasts between the two. Inspector Rebus has the archetypal characteristics of the hero of the contemporary detective story. He is a troubled loner, an alcoholic with a broken marriage and problems with authority. The stories mostly involve murder, dirty dealings below the surface of respectable Edinburgh life, and (in the pattern established by Raymond Chandler) link to some sort of political or financial (and hence moral) corruption.

James McLevy
James McLevy, by contrast, patrols the streets of Edinburgh keeping underworld figures under his beady eye, and cheerfully dispatching them to terms of transportation or imprisonment. However this Edinburgh detective is not pursuing corruption in high places or solving horrible murders, but is mainly concerned with relatively minor crimes - recovering stolen jewellery, prostitutes cheating their clients, messenger boys absconding with their charges. His role is as much to prevent crimes as to solve them, spotting the habitual criminal in a compromising situation or anticipating the criminal plan by a correct interpretation of their behaviour. The role of the detective in the solving of crime relies less on forensic detection than on the detective's knowledge of people and places in Edinburgh. He knows where to go to find malefactors, the fences they deal with, or the places they hide. He is not above placing pressure on suspects to confess, threatening them with the consequences of silence. And when all else fails he walks the streets looking for clues, in the persons dress, demeanour or physiognomy - often relying on his own presence or the sight of the detective to prompt the wrongdoers to panic. And in a surprising number of stories (or at least in his recounting of them) the successful solution relies on chance - a chance encounter with a suspect or the chance discovery of stolen goods. So, for the modern reader there is surprisingly little 'detection' as the tropes of the modern detective story are absent. The stories rather present a fascinating picture of the policing of mid-nineteenth century, of the concerns central to the enforcement of the criminal law in this period, and of the nascent profession of police detective.

McLevy's books included The Sliding Scale of Life (1861), Curiosities of Crime in Edinburgh (1861), and The Disclosures of a Detective (1860). Extracts have been republished, most recently in The Edinburgh Detective, and McLevy Returns (both 2002). Interestingly the character has been used in a series of recent crime novels by David Ashton which place him at the centre of murder investigations involving powerful society figures - closer to Rankin's Edinburgh detective and which seems rather at odds with the original creation.

Wednesday, 16 November 2011

On corroboration

How much evidence should be needed before a person can be convicted? In systems that have a requirement of corroboration the answer is at least two. This is normally understood as a protection for the accused person, as no one can be convicted on the basis of an unsupported accusation from one other person. If this is the aim of corroboration then this seems right, but since it does not say anything about the weight or quality of evidence, the strength of the protection it provides in practice may not be clear. It would be unjust if a person could be convicted on the basis of two (or more) weak pieces of evidence; but equally if there is one really convincing witness or a strong and compelling piece of evidence it can seem rather arbitrary if a prosecution cannot proceed for want of a second piece of corroborating evidence.

These thoughts are prompted by the imminent publication of the Carloway Review in Scotland. This was an investigation established in the wake of the decision of the Supreme Court of the UK in the case of Cadder. This case held that legislation that allowed suspects to be detained by the police for up to six hours without access to legal advice was contrary to the European Convention on Human Rights - raising the unthinkable prospect that if those detained were in fact to receive legal advice then they might exercise their right to silence making convictions hard to obtain in large numbers of cases. In the light of this (and other) concerns arising from the case Lord Carloway was asked to look at what reforms might be necessary to the criminal justice system in order to ensure that it could still work effectively. And one of the possibilities canvassed was that it might be necessary to remove or relax the corroboration requirement.

It seems highly unlikely that Carloway will recommend abolition, as corroboration and the protection it is thought to offer is central to the self-image of Scottish criminal justice. But I have two observations to make here. It seems clear that the requirement of corroboration can operate as protection against certain types of accusation, but it is not clear that this protection operates across the board. Corroboration has its origins in a pre-modern system (indeed a mediaval system, most historians agree) where criminal actions were brought by private individuals. Specifically it pre-dates the establishment of modern police forces in the nineteenth century and the systematic prosecution of individuals for minor 'police' offences. In modern practice then the requirement of corroboration in many criminal prosecution means no more than that police officers work in pairs. Corroboration is less a protection than a formality. If this is the reality in minor offences, corrboration can operate in a different way in sexual offences. Here the problem is often that an accusation of rape might boil down to the word of the complainer against that of the alleged attacker, but in the absence of corroboration the case will never come before a jury. In this type of case then corroborationan is a protection, but of the wrong kind, as the high threshold might prevent justice from being done.
If this is right then there may be grounds for rethinking the place and importance of corroboration.

[Update 18th November: I'm happy to say that my prediction above was entirely wrong, as the Carloway Review has wrongfooted everyone and recommended the abolition of corroboration. This, of  course, will still have to be implemented by the Scottish Government, and there is likely to be resistance, but the gauntlet has been thrown down.]

Monday, 14 November 2011

On the ascent of the detective

The police detective occupies an uneasy place in crime fiction - and especially the crime fiction of the 'Golden Age' of the Edwardian or inter-war country house murder. For every story in which the police detective is competent and solves the mystery, there is another in which the bumbling and incompetent lower class police detective plays the foil to the part-time, gentlemanly, sleuth - be it Sherlock Holmes, Lord Peter Wimsey or Hercules Poirot. The detecting of crime was often presented as the pursuit of the leisured and highly educated amateur rather than as a professional career. Much has been written about this in the context of the rise of detective fiction as a genre, but now for the first time we have a book that systematically explore the origins of the police detective, letting us see more of this, often shadowy, figure.

This book, The Ascent of the Detective. Police Sleuths in Victorian and Edwardian England, by Haia Shpayer-Makov, explores different dimensions of the emergence of the detective. It begins with the identification of the role of the deteective within the newly established police forces of the nineteenth century. She points out that there was initial resistance to the idea as corrupt thief-takers and agents provocateurs had tarnished the image of plainclothes police in the eighteenth century. Notwithstanding this the first detective department was established in the Metropolitan Police in 1842, with other forces following by the 1850s. She then looks at the recruitment of detectives and their organisation within particular offices within forces that allowed them developing a particular ethos and specialised knowledge as the century progressed. Lastly she explores the mythology that grew up around institutions, such as Scotland Yard, that was cultivated through close relationships with the developing tabloid press which relied on police sources for information about crimes, and in return would assist in the solving of crimes by publishing calls for information and writing favourable reports about individual detectives. By the end of the century, then, she concludes that detectives had established a place for themselves both within the police organisation and the national imagination.
This is a wonderfully rich historical account, and there is something of interest to the historian of crime on nearly every page, but it is worth reflecting on the broader significance of the police detective. Is their emergence a development that changed the criminal law in any way? One important point that Shpayer-Makov makes here concerns the changing function of the criminal law in this period. This was a period, as she points out, which saw massive growth in wealth and consumption alongside endemic poverty, fear of crime and outbursts of political violence. police detectives played an important role in investigating groups or individuals beofre they committed crimes as well as managing the social tensions that were produced. The image of the detective was also central to legitimating the idea of the police and legal authority. Second, it is worth noting that this developed as a state function. This was not the realm of the private eye, and even those amateurs who populated the pages of crime fiction were in the end conceived as adjuncts to the power of the state rather than as alternatives. Lastly it may point to a role in a developing kind of surveillance, as the presence of the detective began to shape the social behaviour so that the reach of the law extended well beyond the collars of those fingered by police constables on the beat. Overall this points to a move from seeing the role of criminal law as being exclusively that of punishment to the detection, investiagtion and prevention of crime. This is something that is often overlooked by accounts of the law which focus only on the justification of punishment, but this book reminds us that our understanding of the function of the law must be broader.
[Full details of the book, and a sample chapter, can be found on the Oxford University Press website]

Tuesday, 8 November 2011

On sectarianism as hate crime

As I write the Scottish SNP government is trying to push through the Offensive Behaviour at Football and Threatening Communications (S.) Bill. It is hard to know where to start with a piece of legislation like this. As the title of the Bill suggests it is a response to particular incidents that occurred during the last football season - on the one hand the singing of offensive songs or chants at or around football matches and on the other, the posting of threats and sending threatening material to high profile individuals connected with a certain football club. While this might seem like an extraordinary reaction to a few isolated incidents it makes a bit more sense in the Scottish context where there is a concern about sectarian crimes.

What is sectarianism? Often described as 'Scotland's shame', there is little agreement over its precise nature or qualities. It has its origins in the divide between religious communities - Catholic and Protestant - and has particularly manifested itself around the support for Glasgow's two main football teams, Celtic (Catholic) and Rangers (Protestant) - hence the concerns addressed by the legislation. Beyond that, though, it is usually now agreed that it is not primarily about religion, but reflects other social and political divisions, though there is disagreement about what these are, and of the significance to be attached to certain cultural symbols such as the flags, songs and chants of football supporters.

This context points to the special difficulties in determining the political need for such a piece of legislation. But rather than adding to the discussion of these issues I want to confine myself to some comments on the content. Here it is hard to avoid the conclusion that the section 1 offence (offensive behaviour) is just extremely poorly drafted. The offence is defined as engaging in behaviour likely to incite public disorder - which would be virtually indistinguishable from the existing common law crime of breach of the peace, given that 'incite' must be understood in this context as meaning 'cause'. 'Behaviour' is then defined in s.1(2) as variously expressing hatred of, or stirring up hatred against, an individual or group on the basis of religion, colour, race, nationality, ethnic origins, sexual orientation, transgender identity or disability, or behaviour motivated by such hatred, or behaviour that is threatening or offensive. A person found guilty of this on indictment would be potentially liable for a sentence of up to 5 years imprisonment.

Even if we leave aside the last two categories here (threatening and offensive behaviour), which seem to have been added only out of a failure of the drafter's nerve and have no clear connection with problem the legislation is aimed at, there are some significant difficulties here. First is why the offence should have been defined in terms of the incitement of public disorder. The problem here is presumably that such conduct in the context in which it occurs (at or near football grounds, or in public places where matches are being shown) is already inflammatory - that is, to shout sectarian slogans at a football match would already be 'inciting' public disorder - which is why there is the concern in the first place. There seems to be no need for this first limb of the offence, unless inciting was specifically understood as urging others to commit a crime. However, since the definition is fulfilled by the behaviour itself there is no need for this.

But what about the definition of 'behaviour'. This is defined in terms of hatred of groups or individuals defined in terms of religion etc. The problem here is that while every kind of conceivable group identity is listed (in spite of the fact that most of these, including religious hatred, are already defined as aggravations in law), the key term 'hatred' is undefined. This may not be thought to be a problem, as there are already other existing aggravations in law defined in terms of 'hatred', but it is surely a greater problem in this context where the nature of the problem (sectarianism) is itself so contested. The traditional songs and chants may be offensive, but do they express hatred? Or is the hatred expressed in the song or does it depend on the motivation of the person singing it - in which case even more ostensibly 'neutral' songs might become more problematic.

The legislation has been condemned by the political opponents of the SNP on the grounds that it is unworkable. This seems to be based on the suggestion that the police and prosecution would not be able to use the offence, because it is too vague and overlaps with existing offences. However, there is a more important sense in which legislation might be unworkable, and that is that it might simply be incomprehensible to those citizens whose conduct it is supposed to regulate. This seems to be the most important sense here. If politicians are unable to agree on the type of conduct that is covered by the legislation, and lawyers even struggle to understand its content, it seems like a serious abdication of responsibility on the part of the legislator, and an invitation to injustice to even attempt to enforce a law such as this.

I don't mean to suggest for a moment here that there is not a serious problem or even that it does not require some sort of special response. I do, however, seriously doubt whether this particular Bill, which is poorly drafted and adds little to the already existing offences in Scots law, is the appropriate solution.

Friday, 4 November 2011

On paradigmatic crimes

What is the crime that best exemplifies the criminal law? This might seem like a bit of an odd question, but there is fashion in legal theorising to seek to identify the typical or paradigmatic crime, in the sense of that which best illustrates all the normative features of the criminal law - that is to say that it should be capable of operating as a model for developing a proper understanding of the criminal law as a body of rules. There are a range of candidates for this, ranging from blackmail to murder to treason. I don't want to go into the reasons why these particular crimes have been put forward, or to nominate a candidate of my own, largely because I think that the exercise itself is rather odd. Why? Well it seems to rest on two key assumptions, neither of which seem to me to be particularly warranted.

The first is the idea that there is or can be a single normative structure to the criminal law. If this were true it would imply that this structure of liability, of defining the scope of the wrong, and relation to defences would apply to all individual crimes  And second is the idea that there are 'core' offences, whose meaning and scope is so settled that one can stand for the whole - with the consequence that all others might be measured against it and found wanting. By contrast my understanding of the criminal law is that its meaning and function as a body of rules is constantly in flux, and that as it, to a great extent, represents the accretion of crimes legislated or created over time it is hard to identify a single principle or structure. Equally, there are different patterns of liability in the development of different crimes such that there may be no readily identifiable set of generalisable features.

That said I wonder if there is something which can be redeemed from this exercise, some sense in which it might be useful to think about paradigmatic crimes. My thought here is that just as different historical periods had distinctive ways of thinking about the nature of the criminal law they might also have had distinctive or paradigmatic crimes. This might be so in the sense that certain crimes were enforced more regularly in certain periods, or the defence of certain interests was treated as being of paramount importance. Thus, offences against property made up much of the 'Bloody Code' in England in the eighteenth century and have been described by Douglas Hay as being central to the operation and even the structuring of the law in that period. Second, certain crimes or types of crime only emerge at particular historical points, and might reflect changes (paradigm shifts?) in the nature of the  law. One key example here is the law of attempts which, notwithstanding older roots, emerges with a new subjective focus in the early nineteenth century as law and police shift towards the prevention of crime. And finally particular crimes might be paradigmatic of the fears or obsessions of a certain period, as arguably the fear or terrorism and incivility are impacting on the crimianl law today. Exploring the idea of paradigmatic crimes in these kinds of senses offers opportunities for opening up to analysis historical patterns and shifts in the use and function of the criminal law, which can help us better understand the place we are in at the moment. And who knows, this might also lead to a paradigm shift in ways of thinking about criminal law.