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, 18 April 2012

On the sentencing of David Gilroy

David Gilroy
Today is apparently a historic day in Scotland (indeed the UK), as for the first time permission was granted to allow TV cameras to film the sentencing of a convicted killer. So David Gilroy, who was found guilty last month of the murder of his girlfriend, Suzanne Pilley, and of concealing her body, was sentenced to life imprisonment, to serve at least 18 years.
You can watch it here, but before you get too excited, you should be aware that the conditions for the filming are strictly controlled. There is no view of the courtroom, no view of the accused, and the cameras are permitted to show only the judge as the sentence is delivered.

I have written in a previous post about the principle of televising sentencing, and I have no particular desire to repeat the same arguments at any length. In that post I suggested that this development was limited by, on the one hand, the blatant attempt to control the type of information or situation that was filmed, and on the other by the fact that it was not likely to be particularly entertaining. With these thoughts in mind it is worth viewing the video. It is hard to see much that is either of public interest or will interest the public here. The video is very dry and at nearly five minutes long requires a certain degree of concentration. Lord Bracadale is seated on the bench, in full judicial robes, against a rather drab brown wooden background (see above). He is filmed from below - no doubt to emphasise the authority of the judge (replicating the position of the public in the courtroom): we look up at such figures. His delivery is undramatic, narrating the facts of the case and explaining the sentence. He does not look into the camera and, save for a moment at the very end,exhibits a studied lack of awareness of its presence. He is no doubt making eye contact with the accused - but we cannot know this for sure (and we cannot see or hear any reaction), and as a result of this we are positioned as an observer of what appears to be a process of communication or explanation, but where only one side of the process is visible.

And this is the major limitation. The filming adds little to a written account, because it is only the judge's words and his studied neutrality which is shown. What might make it interesting, or explain how this is a social process, is excluded - and of course we must fall back on traditional resources to learn about this - the impressions of the journalist in the courtroom of the reaction of the accused, the statements by family or police on the steps of the courtroom. This is the familiar staging of the criminal trial in the television age.

Much has been written about how this represents a new commitment to openness, but I cannot see this. Of course it might be thought that showing this is better than showing nothing, but what is shown is so limited and controlled that I cannot see in it any real commitment to open justice.

Friday, 13 April 2012

On responsibility and criminalisation

One of the commonplaces of criminal law theory is that responsibility acts primarily as a constraint on criminalisation. This is in part seen as a matter of certain types of legislation introducing e.g. strict liability, where it is argued that reading in a requirement of responsibility (or mens rea) would limit the impact of the law. But it is mostly because the principle of responsibilty - that punishment of individuals by the state is only justified where individuals have chosen to break the law - is interpreted as a constraint on state power, a way of establishing the limits of permissible state action.

This is undoubtedly a powerful argument, but it should not exhaust or limit our own thinking about responsibility and criminalisation. What I am concerned with here is the question of how responsibility might help to shape or define the scope of that which is criminalised, which is something which has been neglected in criminal law theory. This requires that we think about responsibility not just in terms of capacity or choice, but as something which has more substantive content. This thought might be captured by asking not only who we are responsible to, but also what we are responsible for: that is to say that responsibility is not ony a matter of answering to others for our conduct, for there also have to be pre-existing expectations about the scope of our duties, roles or relations with others. These are also important questions of political theory, for the exact nature or scope of these duties (as parents, as officers within an organisation, as citizens) are not given but will be shpaed by the kind of society or political community that we live in. It thus seems that to think of responsibility primarily in terms of limits is to put the cart before the horse, for how can we talk of limiting state power without having first talked about the nature of the state.

Thursday, 5 April 2012

On standing your ground (again)

The focus of my previous post on this topic was the law, and in particular the definition of what it means to 'stand one's ground'. But it is important to remember that the impact of laws such as these also depends on the social context in which they are enforced (or not). It is fascinating then to read this story which traces a correlation between US states with 'stand your ground' laws, weak gun control laws and an apparent rise in the numbers of justifiable homicides.

Little surprise there, you might think. One final thought, though. The article wants to see the problem of increasing homicides in terms of the nexus between weak gun control and permissive laws, but it may be that it is the background culture which produces both. Either way, the problem is that of how to stop the escalation.

Monday, 2 April 2012

On seriouness

One of the axioms of modern thought about criminalisation is that criminal law should be reserved for the most serious matters. The thought is that there is a continuum of responses to forms of wrongdoing - from informal responses to civil law, to certain kinds of regulatory response, to the use of criminal law as a last resort. While this is rarely examined it is assumed, I think, that this legal response tracks social attitudes or beliefs, that criminal law should be used sparingly. It is, moreover, assumed to be the case that criminal law, as the expression of state power should be used as sparingly as possbile in order maximise individual freedom.

An anglo-saxon penny
But is it necessarily the case that the role of criminal law must be conceived in this way? A fascinating piece of research on the relations between theft and homicide in Anglo-Saxon England raises questions about this. The argument of this piece of research, published by TB Lambert in the most recent issue of Past and Present, is that there was a significant disparity in the way that the royal courts treated theft and homicide. He suggests that theft was regarded primarily as a criminal offence, but killing was understood primarily as offence against the victim and their fmaily rather than the king. Theft (and other property offences) accordingly were tried in the royal courts and attracted severe punishment, while homicide could be resolved by the payment of appropriate compensation to the family of the victim.

This distinction came about, Lambert suggests, because killing was seen as an open honourable offence, while theft was a dishonourable secret one. Thus a killer would be expected to admit the offence openly as a matter of honour and to make redress possible. Theft, by contrast, was a secret offence, the perpetrator was unknown and the victim could not know how to get redress. Lambert is at pains to stress that both were regarded as serious wrongs - but that seriousness did not automatically mean that criminal law was the appropriate remedy.

An Anglo-Saxon helmet, from Sutton Hoo
 What might this mean for thinking about criminalisation? Well, first it is interesting to note the reversal in the understanding of the relative seriousness of theft and homicide. Theft was one of the most serious criminal offences at the time and homicide was not, whereas in the modern world we tend to believe the opposite of this. This at least should give pause for thought to those who suggest that there is a core understanding of wrongs and their relative seriousness which is common to all (or most) societies which makes the core of the criminal law. It follows from this that we must pay attention to how the category of crime is constituted. Lambert suggests that this starts to occur from the late twelfth century, with the grouping together of theft and homicide under a single royal jurisdiction - a development that he suggest was connected to the ending of the practice of feuding. Most important for the point here it suggests, as Lambert points out, that seriousness and wrongdoing do not automatically track each other. Both theft and homicide could be thought of as serious wrongs at the time, but only one of these was thought to be a matter of primarily public concern. That this was so was connected to forms of social organisation, legal jurisdiction and undertandings of violence and honour.

This is obviously of enormous historical interest, and if true would require a substantial rethinking of the history of crime and law. But should any of this trouble the legal theorist, who might well respond that historical development after the twelfth century merely underlines the normative claim that criminal law should be reserved for the most serious offences; that the modern position is best, and correct as well. I think that there are two possible responses to this. The first, and weaker, point would be that this at the very least reveals the contingency of some of the assumptions underlying our normative thought. We should beware making claims about the universality of some of our beliefs or intuitions, because such claims can be easily undermined. The second point though would raise deeper issues of method to point out that the ordering of seriouness is not primarily a moral issue but a matter of legal ordering. The moral weighting we might give to certain conduct must be understood through the lens of legal jurisdiction. From this perspective we may not want to argue that the modern position is wrong, but that it must be understood primarily as a legal and political question of state power rather than as a question of moral theory.