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.

Thursday, 31 May 2012

On the Murders Abroad Act 1817

Here is the text of this Act passed by the British Parliament in 1817:
“All murders and manslaughters committed or that shall be committed within any other islands, countries or places not within his Majesty’s dominions, nor subject to any European state or power, nor within the territory of the United States of America, by the master or crew of any British ship or vessel … or by any person sailing therein or belonging thereto, or that shall have sailed in or belonged to and have quitted any British ship or vessel to live in any of the said islands countries or places .. may be tried, adjudged and punished … in the same manner as if such offence or offences had been committed on the high seas."
What is striking about this is that it seeks to extend the jurisdiction of the English law of homicide to what the celebrated English criminal lawyer, Glanville Wiliams called “uncivilised territory” i.e. that which is not controlled by Britain, other European powers or the United States. This was passed as a particular response to outrages committed by sailors in the Pacific Islands and certain areas of Latin America. It both demonstrates the hubris of imperial power - our law extends even to those place outwith the dominion of the Crown - and creates an interesting linkage between jurisdiction and civilisation.
[There is an archive containing this and simliar legislation relating to the South Pacific at http://www.vanuatu.usp.ac.fj/library/online/texts/Pacific_archive/homepage.htm ]

Monday, 28 May 2012

On the strange case of the Felicidade (1845)

On 26th February 1845 the British ship HMS Wasp was patrolling off the coast of Africa, looking for ships that might be involved in the slave trade. A Brazilian ship called the Felicidade was spotted, and the Wasp gave chase. The ship was captured, but proved to have no slaves on board, though it was fitted out for the slave trade and was clearly on its way to Africa for this purpose. A party of British sailors boarded the ship under the command of a Lieutenant Stupart.

While on board the Felicidade, a second ship named the Echo was spotted, and both the Wasp and the Felicidade gave chase - though the Wasp was quickly left behind. After a pursuit lasting 3 days, the Echo surrendered. The captain of the Echo and its crew of twenty one were taken on board the Felicidade, which was put under the command of a sailor named Midshipman Palmer with nine sailors, while Lieutenant Stupart and a boarding party of seven manned the Echo. That night, however, as Palmer apparently 'permitted himself the luxury of a bath', the captured Brazilian crew rose up, killed the ten British sailors and threw their bodies overboard, before fleeing once more.

The Echo was unable to follow, but three days later the Felicidade was again stopped by another British ship. The crew of this ship knew nothing about the previous events but became suspicious about the unexplained bloodstains on the deck and questioned the the captured men. Eventually two crew members confessed and the Brazilian crew were once more taken into custody. This time they were taken to England where they were tried at Exeter Assizes at the end of July 1845 for the murder of the ten British seamen.

The story so far is fascinating - a forgotten episode in the suppression of the Atlantic slave trade. However, it is the trial and its aftermath which is really extraordinary from a legal point of view. Initially the men were convicted of murder. (Interestingly they were tried in Exeter using of a jury de linguae mediatate - a jury half of whom were non-native English speakers). However, the case was deemed to raise complex legal issues on which further discussion was required, and so these were reserved to the common law judges in London for further argument (there being no proper appeal process at this time). The main point at issue can be briefly stated. It was claimed that the English courts lacked the jurisdiction to try the men for murder: the incident had taken place on a Brazilian ship on the high seas and the identity of victims was insufficient to confer jurisdiction on the English courts.

It was accepted law that English courts had jurisdiction over offences committed on British ships at sea, irrespective of the nationality of the offender. However, it also followed from this that they had no jurisdiction over offences committed on foreign vessels. The case accordingly turned on the question of the nationality of the Felicidade at the time of the incident, for if it were accepted that it was a foreign ship then the crew would have a right to resist using force, for the British sailors would then be acting without lawful authority and could legally be viewed as pirates. For the Crown it was contended that the sailors had acted lawfully under treaties in force between Britain and Brazil for the suppression of the slave trade. Under these treaties it was argued that ships could lawfully be detained either where there were slaves on board or where there was equipment supporting slavery. Accordingly it was argued that the Felicidade in effect became British at the moment of its capture and was operating under British authority. The lawyers for the defence argued that while the original apprehension of the Echo might have been legal under the treaty, there was no jurisdiction in respect of a different crime committed on board a Brazilian ship which they argued had been illegally seized by the Wasp. The majority of the court agreed with this view and the crew of the Echo were set at liberty and returned to Brazil at the expense of the British government.

This is in many ways a surprising decision. It might have been expected that the English Courts would jump to the protection of British sailors who, whatever their precise legal status, were acting in good faith and seeking to suppress the illegal Brazilian slave trade- a project that was actively supported by the government of the time. It might also have been expected that, in the era of Lord Palmerston's 'gunboat diplomacy', the courts would protect British sailors from being murdered. What emerges instead is that the courts upheld (albeit only by a majority) a highly technical reading of the jurisdiction of the courts, which seemed to cut against the political interests of the British state.

The decision, unsurprisingly, was not popular. There are reports of outrage being expressed in Parliament and of the Times thundering its discontent. Commanders of ships on the African coast led boarding parties shoulting 'Remember the Felicidade', and rather than being taken into custody, the captured Brazilian crews were set adrift in boats near the African shore, leading to their almost certain death either at sea or at the hands of Africans if they regained the shore.

Tuesday, 22 May 2012

On legal treatises

In spite of their undoubted importance legal treatises have been somewhat neglected by scholars and historians. The dominant understanding of the importance of the treatise was established in a article published by celebrated legal historian AWB Simpson in 1981. In this he argued that treatises should be understood as a distinct form of legal literature that emerged over the course of the eighteenth century, the distinctive qualities of which were that it sought to identify the principles that should structure the law in a particular area and thereby reveal (or impose) a kind of doctrinal unity on the area of study. For Simpson this was traced in particular through the emergence of areas such as contract or property as distinct principled fields within the common law as a whole.

This view has now been challenged in a collection of essays published this month. While paying tribute to Simpson's groundbreaking work, the essays make two main points. First, the contributors show that the treatise could take many forms, and that not all treatises could fit easily into the template described by Simpson. There is more emphasis in these essays on the kinds of functions that treatises were expected to perform and who they were written by: were they aimed at students or practitioners? Were the authors judges or magistrates, or just hard up barristers trying to make a bit of money on the side? The answers to these kind of questions are often linked to the kind of literature that was produced, and suggests that many authors did not have the systematising ambitions identified by Simpson. Second, by looking at treatises in a wider geogrraphical context than just England - the essays cover the US, Canada and Scotland, as well as England -  it shows that they played a range of different functions often depending on how developed legal institutions were in that particular place.

It would be wrong of me not to declare an interest in this - I wrote one of the essays in the book (on nineteenth century criminal law books) - but even so, this is still a tremendous collection and definitely worth a look.

Wednesday, 16 May 2012

On criminal law's imaginary

A conversation last week got me thinking about this question: what would criminal law's imaginary or ideal world look like?
The ideal city
What do I mean by an imaginary here? I know that the term has a technical meanings in psychoanalytic theory, but want to use it here in a simple sense as a way of just raising the question. This would the question of the criminal law's fantasy image of itself. What does it understand itself to be? In what sort of terms does the law see or understand itself?

Why does this matter? Well one sense in which it might matter is that criminal law theories are often concerned with questions of the normative - how the law ought to be (as opposed to how it is) - and use this as a standard against which to criticise existing law. However, for such criticisms to have purchase they would surely need to engage with how the criminal law sees or understands itself. If, then, the criminal law's self image is based on practicality or efficiency, then the criticism might be understood as misplaced. Another sense in which it might be important would be in terms of understanding its broad self-image or the sense of place or time in which it sees itself operating.

While it common to talk about the imaginary in relation to individuals, it is les common to think about it in relation to a social institution such as law. Can it have an imaginary? And if so where would we find it? And of course it would change over time - there is no single imaginary.

One possibility might be academic writings that order and reflect on the criminal law, or alternatively the judgments of of appellate courts. What do they understand the law to be doing. In what does it consist? What holds it together?

 If this is too complex, another possibility is that we could look at the works of individual authors who hvae developed a theory of the criminal law, and ask the question of that theory. One example that comes to mind here is this quote from Jeremy Bentham, which comes at the end of "Of laws in general", in which he has been developing his theory of the criminal code:
On a map of the law executed upon such a plan there are no terrae incognitae, no blank spaces: nothing is at least omitted, nothing unprovided for: the vast and hitherto shapeless expanse of jurisprudence is collected and condensed into a compact sphere which the eye at a moment's warning can traverse in all imaginable directions
What is striking to me about this quotation is that it lays bare in a single sentence the whole machinery of the law as conceives of it: everything is known in law; everything is mapped and ordered; But more than anything else it captures a dynamic of speed and efficiency. The eye of the lawyer moves through the code as the panoptic eye moves through the social body, alert and responsive. It is bleak and somewhat intimidating picture, and revealing of the imaginary of this project of codification.

For some reason this phrase always makes me think of Piero della Francesca's famous image, the ideal city. It is a beautiful painting of symmetrical renaissance palazzi. It demonstrates the techniques of perspective. But in reverse from the normal technique of opening out from a central object in the foreground to a broader landscape in the background, this painting pulls us in to the circular palace in the middle.

The Ideal City?
And look more closely. The city is organised on a grid: the lines of the square go out in every direction; the buildings are in squares, replicating the city plan; and the only curve is in the central circular building, perhaps anticipating the panoptic eye of Bentham's code. (Even the sky follows the same linear pattern). Above all this is the ideal city without people - whose presence is only hinted at by a couple of plants in windows. It is the city imagined as pure order, like Bentham's code, and its beauty is ultimately terrifying.

Sunday, 13 May 2012

On criminal law and religion

There is a massive gap in our understanding of the relation between religious beliefs and institutions and the criminal law. This is all the more surprising given that the languages of religion and law draw on the same sets of concepts. We routinely talk in criminal law about guilt, wrongdoing, judgement, moral character and conscience and so on, yet these terms are treated as though they have no deeper history in our religious and cultural institutions and beliefs. This seems very strange: if we want to understand the nature of guilt or judgment then why not engage with theologians, who have been discussing such matters for hundreds of years? This failure might seem even more surprising in Scotland where one of the distinctive features of the criminal law is its explicit use of religious concepts, such as evil and wickedness, as concepts of mens rea.

Kirk or law?
In other respects this neglect is more comprehensible. The development of the modern law, in Western European countries at least, is routinely understood in terms of a process of secularisation, in which the law frees itself from superstition or enchantment, escaping direct religious influence. Institutionally this meant a separation between church and state. This was reflected in the conduct of trials, the training of lawyers, the rituals of judgment and punishment. In content, this is seen in the declining importance of crimes against religion (such as blasphemy or witchcraft) and the gradually declining importance of crimes directly derived from religious precepts, such as adultery. Indeed, the absence of crimes such as blasphemy or adultery comes to be seen as a marker of modernity or civilisation with respect to other systems (such as Pakistan or Iran) where such crimes continue to exist. Notwithstanding this it is clear that our systems still struggle to engage with religion - such as crimes committed in the name of religion (such as honour killings) or the protection of religion as an aspect of identity (hate crimes) - although interestingly these now tend to be treated as matters of cultural difference, reflecting the secularisation of perspective.

It is, though, less easy to track the influence of beliefs about guilt and character in the modern law. There is clear historical evidence of their importance in relation to punishment, in the penitentiary and the secularisation of rituals of confession or asceticism, as has been demonstrated by historians such as Michel Foucault and Michael Ignatieff amongst others. But what about in the substantive criminal law itself? How did religious beliefs shape or influence the grammar and institutions of the modern law? Was there a difference between criminal law in protestant and catholic countries? These are the kind of issues that have not been systematically addressed by historians or theorists.

John Calvin

Some answers to these questions can be found in a fascinating article in a recent Edinburgh Law Review by Chloe Kennedy. In this paper she looks specifically at the influence of Calvinism on Scots criminal law in the seventeenth and eighteenth centuries, and she finds clear traces of Calvinist doctrine in contemporary legal writings. This, perhaps, perhaps should not be surprising. The influence of the Kirk in post-reformation Scotland is well known at both a national and local level, and so we should expect that lawyers would be trained in theology and that this would be reflected in their writings and judgments. However, in the most interesting sections of the paper she looks at the relation between Calvinist ideas of guilt and will to show how the idea of 'dole' - as a kind of general mens rea or sense of evil will which is one of the central concepts in Scots criminal law - has a clear affinity with Calvinist beliefs.

This is an important contribution to the understanding of Scots law, but should also stand as a reminder to all criminal lawyers that this relation between criminal law and religion should not be neglected.


Tuesday, 8 May 2012

On the fall and (possible) rise of treason

One of the most notable changes in the criminal law over the past few centuries is the decline in importance of the crime of treason. In the early modern period treason was one of the organising ideas of the criminal law. Offences against the sovereign were not only the most serious form of crime, but other serious wrongs were also conceived of as forms of treason. Thus, murder of a father or a master was understood as 'petit-treason' - not only the wrong of killing but a killing made worse by breach of the relation of trust between killer and victim. If not exactly regular occurrences, treason trials were a feature of the political and religious conflicts of the seventeenth and eighteenth centuries.

The long decline of treason began in the nineteenth century. While political conflict did not decline, the authorities began to find other ways of dealing with it, more often than not avoiding the kind of direct confrontation that a treason trial entailed. There were famous instances of treason prosecutions in Britain in the twentieth century - notably of diplomat and Irish rebel Sir Roger Casement in 1916 and William Joyce (Lord Haw Haw) in 1945 - but these stand out because of their rarity rather than as indications of any more general usage of the criminal law. Possibly the most famous treason trial of the twentieth century was that of Nelson Mandela in 1956 - but that in itself tells us something about the use of the crime, as it was a defensive and authoritarian regime that sought to suppress political dissent

It is not hard to explain this decline. Treason trials were state trials, moments of political importance where the criminal law was used against opponents (or alleged opponents) of the state. The use of the criminal law in this way politicised the law, and carried potential to deligitimise the law as its use for political ends challenged the appearance of neutrality. The definition of the crime also required proof of motive - that certain acts were directed against the state or person of the sovereign. This gave the accused a kind of platform either to challenge the state directly, by arguing that it was illegitimate, or more indirectly, by arguing that their motives were to protect the state against itself. And so we find that political opponents of the state were prosecuted in other ways, such as for breaches of public order. The use of minor offences that were easily proven and which gave little opportunity to use the courtroom to mount political challenges was more effective in defusing political tension - a development that also reflected the professionalisation of policing. And as political democracies became more established there was also, it has to be said, a greater tolerance of political dissent and protest. This is not to say that direct forms of political resistance are tolerated in the modern state, but that in the criminal law they are targetted by novel crimes such as terrorism offences, which are, at least in name, more targeted at particular forms of conduct.

In this context it is somewhat surprising to find some US academics pressing for a renewed recognition of the importance of treason. The argument, stated briefly, is that treason as a crime of disloyalty, should be understood as a transgression of political boundaries. It is thus argued that citizens owe duties to the state and that treason breaches these duties. The crime of treason is thus connected to the sense of loyalty that as citizens we ought to owe to the political community of which we are a part. Once again this would make treason central to the criminal law, for almost every crime could then be seen as a crime against the community - breaking the bond of trust or loyalty that we owe to others.

Sir Roger Casement,
tried for treason in 1916

Now this is all very well as way of linking criminal law to a sense of political obligation, but this kind of approach seems dangerous. The first question that we might ask is a broad one: can it really be said that we owe a strong sense of loyalty to the state in this sense in the modern world? I am sceptical about this for it is surely the case that in modern, multicultural democracies this kind of strong sense of loyalty is surely absent. Most modern states have large populations of non-nationals, of recent immigrants, of different ethnic or religious communities. It might be realistic to require that these groups or individual members of these groups acknowledge an obligation to obey the law of the state in which they live, but to require something stronger, the kind of commitment that 'loyalty' suggests, is surely too much. This would also raise questions about criteria for membership. When can it be said that a person belongs to a political community in the sense that they owe a duty of loyalty? And what would happen with the kind of divided or multiple senses of belonging that are common in the modern world?

It also seems to me that this approach would cause problems in criminal law terms. The crime of treason is notoriously inchoate. Historically it required imagining the death of the sovereign, but even modern definitions tend to focus on some sense of conspiracy or plotting against the state - that is to say it is criminalises a person for their political designs rather than their conduct. Surely it is better to prosecute a person for their conduct if it is an existing crime, than to invent new crimes, by which I mean that if a person is planning some sort of political violence against the state or its symbols they can already be prosecuted for this, without the need to reimagine the crime of treason.

The decline of treason is a long and interesting story, and there is much interesting research that could be done into this. Its possible rise is another story altogether, and it is to be hoped that it is short-lived.