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.

Tuesday, 31 January 2012

On the possession of drugs

I've recently had a look at the Drugs Misuse Statistics for Scotland 2010. Hidden inside this rather imposing document are some very interesting figures which tell us a lot about the enforcement of the criminal law.

As is well known, the main offences relating to drugs are contained in the Misuse of Drugs Act 1971. The main offences under the statute are contained in s.5(2) and 5(3) - these are being in possession of a controlled drug and being in possession of a controlled drug with intent to supply another. (The definitions of controlled drugs are found in Schedule 2 to the Act). While there has been a lot of legal discussion of the definition of possession (basically you are held to possess sometihng if you know that it is on your person or in your property even if you do not know exactly what it is), what I am more concerned about here is the question of enforcement. What is important here is that s.23(2) of the Act gives a police officer power to serach any person or vehicle where they have reasonable grounds to believe that the person is in possession of a controlled drug. With this in mind let us turn to the statistics.

These show that in 2010 there were 39,408 drug related offences recorded by Scottish police forces. 29,179 (74%) of these were for possession (s.5(2)) and 9131 (23%) were for possession with intent to supply (s.5(3)). If we go on we find that there were 9503 drug offences where the charges were proved, 7251 of which where it was the main offence (ie. that in the other cases the person was also charged with another offence, which was presumably how they had come to the attention of the police).

What is the significance of this? The main thing that stands out here is the massive discrepancy between the number of recorded offences and the number of convictions. What the figures then suggest is that the search powers are widely used, but that these are only rarely followed through to prosecution or conviction - there are other more or less formal ways of disposing of these cases. The good news here is that if you possess drugs (especially Class C drugs), you are unlikely to be prosecuted, but this does depend on the discretion of the police and prosecution.

More generally, these figures point to the increasing importance of possession offences to the criminal law. under the law possession is defined broadly, and is usually associated with special powers for the police to stop and search suspects. This is justified because the possession of certain objects (drugs, knives, articles associated with terrorism etc) is seen as creating a particular risk of future harm - even though the connection might be quite remote. The enforcement of the law places a great deal of discretion in the hands of the police, as the question of what amounts to 'reasonable grounds' remains vague and hard to determine, with the suspicion often grounded by the subsequent discovery of the criminalised item. And of course enforcement comes ot be targeted in certain areas or aimed at particular groups or ethnic communities, having the effect of creating 'suspect communities'. This cannot be a good way of constructing the criminal law. The answer must be that we need to think much harder about the enactment of these broad offences, and where they already exist in the law to think about how they might be constrained. And if all else fails, the card below offers a different kind of solution.

Sunday, 29 January 2012

On double jeopardy

Double jeopardy has been much in the news recently. First, in England there was the prosecution and conviction of Gary Dobson and David Norris for the murder of Stephen Lawrence in 1993. The two men had originally been prosecuted for this crime in 1996 so the second prosecution was only possible because of the relaxation of the rules on double jeopardy in England and Wales in Criminal Justice Act 2003 ss.75-8. Now, in Scotland there comes the welcome news that the investigation of the murder of Surjit Singh Chhokar is to be reopened, with a view to bringing new prosecution against three men originally tried for the crime.

Surjit Singh Chhokar
The Chhokar case has been dubbed the Scottish Stephen Lawrence case, and there are clear parallels. Chhokar was the victim of a brutal racist attack in 1998. As in the Lawrence case, the evidence pointed fairly clearly towards three men as the perpetrators of the attack, but two separate trials of the men collapsed as the accused refused to incriminate each other and there was insufficient other evidence. As in the Lawrence case, subsequent reviews of the case found failings in the police response and investigation, and in the prosecution of the case, and these were attributed to an 'institutional racism' in these institutions. And again, as with the Lawrence case, there is now the attempt to bring new prosecutions against the perpetrators following the relaxation of the double jeopardy rule in Scotland in 2011.

What is double jeopardy? The principle seems to have its origins in the prohibition of the oppressive use of the criminal law through 'constitutional' safeguards. This in turn may have had its origins in superstition or beliefs in divine justice, as a as the victim of a failed execution was allowed to go free - the thought being that a higher power had intervened to see that justice was done. By the eighteenth century though this had settled down into the modern belief about preventing oppression. The powerful should not be allowed to keep bringing prosecutions against an individual, or to bully successive juries into returning the verdict they wanted. Reading Hume's Commentaries, he is concerned that a person who has stood trial for a crime once - been in jeopardy of his life - should not be put through the process again and again. For Hume it did not matter if the flaws in the prosecution could be attributed to the a poorly assembled case, errors on the face of the indictment, or that the prosecutor disagreed with the verdict returned by the jury. His view was that a person who had 'tholed their assize' should not be forced to stand trial a second time on an indictment relating to the same facts for this would open the door to oppression. Equally, this meant that a prosecutor should not be able to make changes and bring the case again on substantially the same indictment. And this came to be regarded in modern terms as a 'procedural' defence - the prosecutor was barred from reprosecuting and an accused might faceed with a second charge might enter a plea in bar of trial.

(It is worth noting in passing that this is rather different from one popular understanding of the principle, which has been used in several movies, such as How to Murder Your Wife (1965). This is the belief that a person tried and acquitted of the murder of a certain individual cannot be prosecuted for the crime a second time, and might therefore have a carte blanche to carry out the crime without fear of further prosecution. The point here is that the principle attaches to charges on the incident, not the person of the victim, so a prosecutor - at least in Scotland - would have been free to bring charges relating to the second incident. But what is good for law is not necessarily good for the movies...).

Now a central assumption of the recent reforms of double jeopardy laws in the UK is that there have been significant changes in the way that crime is investigated and that the criminal law is enforced. This primarily is the argument that with advances in forensic science new evidence (such as DNA evidence) may come to light that may allow the prosecution to secure convictions in cases where this might not have been possible at the time of the original trial. This may well be so. The convictions in the Lawrence case were based on the discovery of minute traces of blood linking the accused to the crime - and it seems to be the reason why the police are being asked to reopen the investigation in the Chhokar case. However, while this is significant we should not lose sight of the concerns that shaped Hume's beliefs. The criminal law should not be used as a cover for the original failings of police and prosecution, and it may still be used in an oppressive way even if we believe that we are on the side of justice.

The crucial factor here will, I think, be the question of how the safeguards in the 2011 Act are interpreted and applied. These operate in two ways. First, the statute, while reaffirming the general principle of double jeopardy, seeks to limit the grounds on which new prosecutions might be brought. These grounds are principally where the acquittal was found to be 'tainted' by the behaviour of a juror, where significant new evidence emerges, or where the acquitted person later confesses to having committed the crime. And second, the Crown must apply to the Court for permission to bring the second prosecution.

While no one should be allowed to get away with murder, there are nonetheless important legal principles at stake here which tell us something important about the society we live in. How this plays out over the coming months will be an important test of both sets of values.

Monday, 23 January 2012

On coffins and the law of theft

It is worth thinking about the impact that particular objects have had on the development of the law. An excellent example of this is the strange case of coffins and the law of theft, where there are two significant Scottish cases, both of which raise the question of when ownership in property ends, or of what the possessor might do with an object in his possession.
The first is the case of Dewar from 1944 (1945 JC 5). In this case the manager of a crematorium in Aberdeen was prosecuted for the theft of 1044 coffin lids and six coffins. His practice was to remove the lids from coffins before bodies were burnt. The lids were then put to a variety of different uses. Some were passed to funeral parlours, and were re-used; others were passed to the National Fire Service where fire crews made them into a variety of objects including desks and wireless cabinets; others had been turned into objects such as rabbit hutches; and others still were given to his employees for use as firewood. The trial must have been an extraordinary event as, according to the press report here many of the lids and others objects seized by the police were placed in the courtroom. Feelings ran high in Aberdeen, and as a result the trial was moved to Edinburgh. (Interestingly it appears that the trial was before a jury of seven, rather than the usual 15 - perhaps because of the war).

Dewar's defence was essentially that he was only following the common practice in crematoria - which was to remove lids before burning. He also argued that it was normal to recycle bits of coffins, and that this could in fact save money for poor people. There was no evidence that he had made any money out of the practice. And when we further consider that this took place towards the end of the second world war, when wood was in short supply, it might also be regarded as a way of making scarce resources go further. Legally, he argued that there was no crime here: the coffins had been effectively abandoned by their owners, as they were passed to him (and some it appears were never really owned, but merely 'rented').

Unfortunately for Dewar these arguments got short shrift from the court. He was found guilty and sentenced to three year's penal servitude. He appealed against the conviction, and it is the judgment of the Appeal Court that settled the law in this area. The Appeal Court held unanimously that the coffins (and their lids) had been sent to him under contract for the purpose of destruction together with the bodies, and so that to depart from this purpose was a misappropriation of property which might amount to theft. They further held that if Dewar held an honest belief on reasonable grounds that the practice was followed in other places then the jury might have acquitted, but that the evidence was unclear as to whether this really was the practice in other crematoria.

The second case is that of Herron v. Diack and Newlands from 1972 (1973 SLT Sh. Ct. 27). Though mainly regarded as notable now for Sheriff Irvine Smith's judgment, the case nonetheless raises an important legal issues. The facts were that Mr Harry B Groom, an American author, had an expressed a wish to be buried in Scottish waters. On his death, the funeral parlour in New York contacted the Glasgow undertaker, where Diack and Newlands worked, to arrange for the burial at sea. The body was duly delivered in a large and expensive steel coffin, at which point Diack directed that the body be removed from this casket and placed in an inexpensive chipboard coffin with iron bars tied to its legs. Three days later the funeral party set out into the Firth of Clyde where a series of ever more unfortunate events took place.

On first being committed to the sea, the coffin did not sink immediately, but came back to the surface with, in the words of a crew member, 'white plastic stuff hanging out'. Some moments later, as the coffin sank, the lid reappeared. This was recovered from the water and the nameplate removed. The nameplate was thrown back in while, in an unconscious echo of Dewar, the lid was given to the crew with the suggestion that it might make a good coffee table. The following day both body and coffin were netted by a fishing boat trawling for prawns - and the unscrupulous captain decided that the best thing to do was to throw both back. Then, five days later, a second fishing boat snared the body again, and this time decided that it would be best to return the body to shore - where the police duly became involved, and the body returned to the original funeral parlour. After a further abortive attempt to use a cheaper coffin - abandoned when the press got hold of the story - the body was eventually returned to the orginal steel coffin and finally received a proper burial at sea.

Diack and Newlands were charged with the theft of the original steel coffin. In their defence it was contended that Diack believed that the original coffin was not appropriate to burial at sea, that he believed he had a right to make such arrangements as they sought fit, and that there was accordingly no evidence of a fraudulent intention. He also maintained that as manager everything was done on his instruction and that Newlands was therefore not guilty of any crime. As in the earlier case of Dewar these arguments were rejected - with the exception of the last, as the case against Newlands was found not proven.

So the place of the coffin in the development of the law of theft is clear. The legal issues are perhaps less so. It appears that in both cases the court was open to the possibility that the accused might be acquitted if it could be shown that this was in fact the practice of the profession - which raises intriguing possibilities. This might have been likely in Dewar, where there is now historical evidence building up to suggest that this practice was not unusual towards the end of the second world war. More conceptually it does perhaps raise questions of who owns the coffin - certainly not the corpse - when it is possessed by funeral parlour. Both courts seem to have relied heavily on contract and not following directions, though this might make the facts look more like fraud than theft. But in the end it is hard to avoid the feeling that that the outcomes were shaped by social beliefs about the wrongness of desecrating corpses, and in a country with a rich history of grave robbing (think Burke and Hare), this was an argument that would always win out.

[Papers from Dewar are now held by the University of Aberdeen Library (MS 3217), and might well be worth a visit]

Tuesday, 17 January 2012

On the trial of the century

Benedict Cumberbatch as Sherlock Holmes
 I was delighted to see that in the excellent BBC version of Sherlock broadcast on Sunday evening, the trial of super-villain Moriarty for breaking into the Tower of London was described as the 'trial of the century'. Though fictional, it was not the first of this century, and nor was it likely to be the trial. Previous ‘trials of century’ this century include the trial in 2005 of Michael Jackson accused of conspiracy to abduct a child, as well as various other lewd acts against children (and after that of his doctor); the trial of Slobodan Milosevic, the former President of Serbia, before the ICTY for crimes against humanity and genocide; and the trial of two Libyan men in Camp Zeist, the Netherlands, accused of murdering the passengers of Pan Am flight 103 by exploding a bomb over Lockerbie, Scotland.

These trials took place only a few years after the trial of OJ Simpson for murder in 1995, a trial that was in its time widely claimed to be the trial of the century – albeit a different century. Indeed, it is possible to find the claim being made about large numbers of trials going back to the early years of the twentieth century. Other candidates for the ‘trial of the century’ include variously the trial of Julius and Ethel Rosenberg (1951), the Nuremberg trials (1945), the Scopes ‘Monkey’ trial (1925), the trial of Leopold and Loeb (1924), and  the trial of Harry Thaw (1906) – and large numbers of trials in between. That we cannot know which criminal trial was ‘the’ trial of this, or any other century, has not hindered the rush to label trials in this fashion.

It is easy to make fun of this, and in a way that is precisely what Sherlock was doing. However, beyond the attempt to build up the profile or significance of the event, to attract viewers or readers, it does raise some more serious underlying issues. Why do we use this tag so often? Why is it that ‘trials of the century’ seem to be occurring ever more frequently? And is there something about this – or the last – century that accords special significance to criminal trials?

Moriarty on trial

One answer might be that trials matter because they are always about more than the particular case, that they reveal something about the time and culture in which they take place. Trials, from the 'trials' of Socrates or Jesus onwards, have always seemed to offer access to a deeper understanding of the society within which they take place. They have been moments of confrontation between established power and the citizen, or between individuals, that have the potential to throw new light on social or political relations or reveal something hidden beneath the surface of conventional social interaction. This is partly a result of legal procedures, particularly in common law systems, where trials take the form of a publicly staged contest, but it is also because trials have in a way been designed to do just this. The staging of the trial, from the language used to the legal rituals to the symbols of justice and the architecture of the courtroom, seeks to represent the law in a certain way, to legitimize the exercise of state power and present a certain image of the community of law. Thus a trial might be dubbed a trial of its century because it crystallized a particular kind of social conflict or dispute, because it laid down the template for succeeding trials, or because it symbolized something particular about the age. But there is arguably something more at stake when contemporaries describe the trials of their own time in this way, for going beyond the simple hyperbole of the claim, it requires a certain amount of self-consciousness, the belief that this trial is capable of revealing a truth about our society and our time. In these terms, the significancce of the claim may be less that any given trial is really the trial of the century, than that our age is the century of the trial. by this I mean that trials have become invested with a particular kind of significance as we expect them always to be about something more than just themselves.


Thursday, 12 January 2012

On offences against the person

What is the person in offences against the person? And what is it to be protected from? The answers might seem to be fairly obvious, but as with many questions in the criminal law once you start to look more closely things can get more complex.

We can see some of the issues in this area by looking at the history and interpretation of the Offences Against the Person Act 1861. Here, in addition to the provisions in sections 18, 20 and 47 relating to forms of interpersonal violence which are well known to contemporary criminal lawyers, the Act contains provisions which are very specific in their definitions and identify particular ways of causing harms to others. Thus there are offences relating to the use of chloroform to commit another indictable offence (s.22), the administration of poison or other noxious substances (ss.23 & 24), causing danger on railways (ss.32-4), wanton and furious driving (s.35) and so on. The Act also recognised different degrees and types of harms as being relevant to the form of liability. On the one hand, we see this in the category of grievous bodily harm (ss.18 & 20), as opposed to (actual) bodily harm (s.47). On the other, we see it in a range of offences that criminalise assault with intent to do other crimes or which endanger life in some way (ss.21-2, 26, 27, 29-34 & 38-9). And there are still other offences which related to the status of the victim, such as assaulting a clergyman, or a magistrate or officer of the peace (ss.36-40).

While some of these offences look anachronistic and over-particular to the modern eye, the codification of criminal conducts in the 1861 Act (and its predecessors) represent an important shift in ways of thinking about interpersonal violence and the kinds of objects that were to be protected. One important shift was the extension of modes of commission. The law traditionally was concerned only with forms of direct interpersonal violence against another person who was in the immediate vicinity of the aggressor. However, the Act recognises a much wider range of modes of causing harm to or interfering with another person. This is graphically captured in certain nineteenth-century statutes, such as Lord Ellenborough’s Act 1803, the long title of which listed the following objects, amongst other things: An Act for the further Prevention of malicious shooting, and attempting to discharge loaded Fire-Arms, stabbing, cutting, wounding, poisoning, and the malicious using of Means to procure the Miscarriage of Women. This opens up the possibility of imposing liability for action at a distance, that is to say actions that bring about consequences in a different place or at a later point in time – often as a consequence of technological development. This is dramatically illustrated by a recent English case in which liability was imposed for the making of silent phone calls which caused psychic harm where there was no suggestion that the defendant was in the proximity of the victim.

Overall these changes reflect a transformation of the sphere of personhood. The object of law of assault was originally the protection of the body, but this has come to be understood as extending to a fuller sense of personhood, understood as a kind of personal space in which an individual is able to exercise or develop their autonomy and sense of self. Recent developments in English law, for example, have seen the protection of the person against ‘psychic harm’ as well as the protection of forms of racial and religious identity in the limited recognition of ‘hate crimes’. This is also linked to the transformation of agency. The consequences of actions are seen as extending further through time, and so the actor is correspondingly expected to anticipate and guard against the possible consequences of their actions on the phyical and psychic wellbeing of others.As with developments in other areas of the law this suggests that the development of the law of offences against the person is complex and uneven, but with a gradual shift towards the expansion of liability.

Monday, 9 January 2012

On obscenity

Michael Peacock,
presumably after acquittal
The acquittal at the end of last week of Michael Peacock on charges of obscenity for the distribution of gay pornography is to be welcomed. Peacock ran a gay escort website which also distributed DVDs containing images of various acts between men, including urination, fisting and BDSM. He was targeted by an undercover police operation and requested to supply varous DVDs - and then prosecuted for the supply. The most notable feature of the case was that there was a trial in the first place. Prosecutions under the Obscene Publications Act 1959 are routinely uncontested. As a consequence, however, the jury were invited to consider whether the acts depicted met the famous s.1 test of obscenity: whether the articles in question was such as to tend to "deprave and corrupt" those viewing it. To their very great credit, they decided that this was not the case, and that acts which were legal between consenting adults should not be treated as illegal if photographed and distributed.

The decision has been recognised as a potentially important recognition of sexual freedom, and it has also been pointed out that this might undermine the whole basis of the regulation under the Obscene Publications Act. Those who have been pleading guilty up until now might now decide that it is worth contesting the charge if it is believed that, as in this case, juries are likely to acquit. However the problem in this area is not just that the law might be in disarray or out of date, but that there are (at least) three separate legal regimes for the regulation of pornographic material, each of which is aimed at the regulation of completely different things.

The oldest regime is that of indecency, which can be traced back to the Vagrancy Act 1824. Indecency uses a test of the subjective reaction of the viewerdid the ordinary man or woman find the material to be shocking, disgusting and revoltingand is focused on capacity of this reaction to disrupt public order. Thus from the Vagrancy Act 1824 onwards, through a range of statutes concerned with police and civic government, the public display of indecent images was linked to their potential to disturb the peace. The concern was less with the conduct as such, but with the place of display and the understanding of appropriate public behaviour. Thus the law was not aimed at the enforcement of general moral standards of conduct, but the regulation of public order.

Would you let your servants
 read this book?
The second is the more overtly moral test of obscenity, which dates from the Obscene Publications Act 1857, concerned the impact that obscene material might have on the character of those consuming it.  It was thus concerned with imagination and interpretation, and its focus was social welfare rather than public order. It sought to regulate what individuals might do in private and was specifically directed at protecting those who might be vulnerable to corrupt influenceswhether women, children, or (in the notorious formulation from the Lady Chatterly's Lover trial) domestic servants. The Act and its successors gave police power to seize obscene materials and it was specificaly aimed at those who produced, distributed and sold such materials.

Third, there is the more recently introduced regulation of extreme pornography introduced in England and Wales by the Criminal Justice and Immigration Act 2008 and (slightly differently) in Scotland by the Criminal Justice and Licensing (S.) Act 2010. The regime here is more muddled. In a recognition that such images are distributed digitally and that it is accordingly difficult to trace the producer or criminalise the distributor of such images, it criminalises possession of the images. However, the test of an extreme image is a combination of the (reasonably precise) listing of specific forms of extreme practice in the legislation, and the older common law test of obscenity (i.e. an image must be both extreme and obscene). The Act thus collapses any distinction between private and public spaces to criminalise according to the moral judgment of the obscene character of the images.

Aside from the fact that, as this brief discussion shows, the law is complex and hard to articulate clearly, what is obviously missing is any clearly articulated rational basis for the law in this area. the Obscene Publications Act might well be undermined by the Peacock case, but there may be no advance at all if prosecution are then taken for extreme pornography, since this just reproduces the test for obscenity - and the criminalisation of possession is potentially even more illiberal. More importantly, this requires us to reflect more systematically on what we want to regulate in this area and why. There are surely good grounds for preventing the display of obscene images in public places, just as there are for protecting individuals involved in the production of pornography against exploitation and violence, just as there may no longer be grounds for criminalising something just because it is disgusting to particular individuals or groups - but these are completely different objects and the law should be revised so as to articulate its aims more clearly.