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.

Friday, 20 December 2013

On assassination

I am late in posting this, as it was my intention to publish it for the 50th anniversary of the killing of John F Kennedy last month - and so my apologies for being out of step. This, as might be expected, prompted the usual round up of stories and theories about the assassination: was there another shooter? was the CIA/the mob involved? was the Warren Commission a cover up? I don't want to get into these here, but I am interested in the question of assassination and political violence and legal responses to these.

When I use the term assassination here I mean it in quite a narrow sense. It is not just any killing, but specifically the killing of political or public figures, with a political motive. This kind of killing has a modern kind of significance. There have, of course, been politically motivated killings throughout history, and debates and theorising about when the use of violence was justified. But up to the modern period this was usually known as tyrannicide - the killing of a tyrant - as it was referred to in classical Greek and Roman political theory. Other politically motivated killings - the removal of an opponent to protect a sovereign's position or to open the path to power (think Macbeth) - could also be referred to as assassination, but the term was not widely used. The idea of assassination as politically motivated killing took on a special significance in the modern age, not only because it became more widespread, but that it was a consequence of the new form of democratic politics. The democratization of power paradoxically democratized political killing as those frustrated by existing rulers and political systems resorted to violence.

This, broadly, is the theme of a new book Age of Assassins by Michael Newton. This presents itself as a history of assassination between the assassination of Lincoln by John Wilkes Booth (1865) and the attempted assassination of Ronald Reagan by John Hinckley in 1981. (It is pleasing to see that Newton gives space to the relation between the  development of the defence of insanity and assassination though mainly in Victorian England). He argues that the nineteenth century killers were typically ordinary people driven by a (misplaced) desire to make the world better. By contrast as the book moves into the 1960s the assassins of the Kennedy brothers, of Martin Luther King, and of Malcolm X were typically loners, with few clear political motivations and often driven by a desire for celebrity. The argument of the book then paints a slightly odd picture of the decline of the American assassination.

The argument clearly works best as a history of political assassination in the USA. He shows that Lincoln declined protection because assassination was seen as un-American, a form of political violence that was alien to the inclusive new republic. And this can be contrasted with the killings that symbolised the 1960s where assassination has become politically meaningless, an act which which seeks to give meaning to an individual life. But the book is broader than this, covering European anarchism  in the 1850s, the Phoenix Park killings by Irish nationalists in Dublin in 1882, the attempted assassination of Hitler in 1944 and many more. While these are fascinating, it is not always clear how they fit into the story. Occasionally, it is true that the European context is essential to understanding American developments, as with the Russian anarchists who moved to the US and were involved in the attempted murder of the industrialist Henry Frick and the assassination of President McKinley, but in other places their inclusion seems more random and actually might seem to contradict the main argument. As Newton himself admits, political assassination is still resorted to routinely in other parts of the world - think of the political violence in Germany, Italy and the UK in the 1970s or the killing of Olaf Palme for instance - which suggests that a history of political assassination in Europe would look very different. And, of course, there is also the question of state sponsored assassination - notably of Osama bin Laden by the USA - which if included might put a very different spin on the argument.

There are also some interesting criminal law questions raised by the argument. One of the key thoughts that emerges here is the difference between terrorism and assassination. While assassination was often carried out by means of bombs (especially in the nineteenth century) and bystanders could be killed, the aim was not that of terrifying the public or creating a mood of political uncertainty by an extreme act of violence. This suggests that not all political violence is terrorism, and conversely, that it might be appropriate to recognize assassination as a distinct form of murder (as terrorism is a distinct form of violence because of its motivation). This would be because is uniquely serious or because the motivation attending the crime should be recognized in the crime definition. This might seem like an odd suggestion, but it seems clear that not all murders are the same and that the degree or seriousness of the act might be recognized in the definition.

Wednesday, 11 December 2013

On Mary Reid or Timney

I wrote a short post on this case earlier in the year: Mary Timney was the last woman to be publicly executed in Scotland, in Dumfries in 1862. I have now had the benefit of reading the book on the case by Jayne Baldwin that I mentioned in that post.

The story is beautifully told and presents a great deal of new information drawn from newspapers and the court and other official records. There are a number of images of letters, of some of the participants and maps and so on. Only a small part of the book is given over the murder and the trial, which is perhaps unsurprising as the case was fairly clear. The bulk of the book is the story of the efforts to get the sentence commuted and the preparations for the execution itself, and this is grippingly told even if we know the outcome in advance. There is also fascinating discussion of the involvement of local MP William Ewart in the campaign on Mary's behalf and against public executions - which came to fruition in 1868.

This is valuable contribution to our understanding of crime and capital punishment in mid-nineteenth century Scotland. I hesitate to say that it would make an excellent Christmas present - it would, but perhaps only for those with an appetite for the grim for the story it tells is not happy one.

Tuesday, 12 November 2013

On the misinterpretation of the Sexual Offences (S) Act 2009: HM Adv v Mutebi

Much has been made of the the reform of the law of sexual offences in Scotland. The passing of the Sexual Offences (S) Act 2009 was a historic moment, replacing the common law of sexual offences with a new statutory code. The law was being modernised, replacing outdated and gendered conceptions of rape with a new law that placed the protection of sexual autonomy at its core. And this new focus was to be reflected in a new approach to the concept of consent which aimed at altering the balance of the trial.

If the old law was often criticised for allowing the complainer to be put on trial over whether or not she had consented, the new law sought to address this in two ways. First, it aimed to take the question of consent out of consideration in certain cases (the statutory indicators in s.13): if it was proved that a complainer was incapable because of drugs or alcohol, or that violence had been used and so on, then there could be no consent as a matter of law. Second, if the accused claimed that they had a reasonable belief that the complainer was consenting, then it was necessary for the accused to show whether
whether they took any steps to ascertain whether there was consent ...; and if so, to what those steps were. (s.16)
The point of this was that it was for the accused to show what steps they took, rather than for a complainer to have to show that she did not consent.

Of course the law was not perfect. The drafting of many sections is clumsy, but it seemed that the central purpose was clear enough. The law was duly passed in 2009, not coming into force until nearly a year later, so as to allow police, prosecutors and judiciary to be trained in the implementation of the new law. However, with the publication of the judgement of one of the first cases to reach the Appeal Court there are now grounds for suspecting that the judiciary have failed to grasp the structure of the new law and that this may actually undercut its aims.

The case is HM Adv v Mutebi. I wrote about this rather speculatively at the time of the decision, on the basis of press reports, bu now we can see more clearly how it was argued. The case concerned an appeal against conviction by Mutebi who claimed that woman he had sex with had consented (although she was very drunk) and that when she had regained consciousness during the sexual intercourse and had withdrawn consent, that he had in fact withdrawn and left her flat.

There is already something strange about this in that in a situation where the complainer was clearly so drunk that she could not remember whether she had consented or not to sex with a stranger, who then stole her phone and money when he left her flat, was not treated as falling within the scope of s.13 (the jury apparently having decided that she might have consented and deleting the relevant part of the indictment). The case thus seems to proceed on the basis that it was likely that she would have consented to have sex with a stranger who she met on the street while very drunk, rather than regarding this as something out of the ordinary or improbable.

However, if we leave this aside I am interested here in how the Appeal Court approached the question of the application of the provisions of the 2009 Act. What is bizarre about this is that after setting out the relevant provisions of the Act, the Court then proceeded to argue as though the pre-existing common law was still in force. Thus rather than focusing on the question of her physical state and the steps that Mutebi might have taken to ascertain whether or not she was consenting, the Court discussed the evidence of knowledge or recklessness as mens rea of rape, and whether there was evidence to corroborate this.

It should not need stating, but this is clearly not the new law. The 'mens rea' of the offence is that the accused should penetrate the complainer with his penis "without any reasonable belief that B (the complainer) consents". And the definition of how reasonable belief should be approached is now set out in s.16 (above). This does not remove the need for corroboration, which the court discusses at length, but it should be clear that it reframes the way his should be approached.

It is worrying that the Court should have erred on such a simple matter as the interpretation of the new law; but as I suggested above, this is an even greater concern when it threatens to undermine the whole basis of the new law.

Monday, 4 November 2013

On witnesses and veils

The question of whether or not women wearing veils should be permitted to testify has been rumbling on for some time in Britain. Yesterday we were treated to the views of Ken Clarke, Minister without Portfolio in the Coalition government, and former Justice Secretary and criminal barrister. According to Clarke, a proper trial is impossible if a witness is wearing "a kind of bag". He went on
I think the judge and jury have got to see the face of the witness [to] judge their demeanour and decide for themselves whether they are going to rely on this evidence ... It may be you have to make some special arrangements, it may be they'll have to be some screening from the general public, but I actually think it undermines a trial.
Ken Clarke, in costume
Leaving aside his cultural insensitivity (a kind of bag?), it is worth pausing for a moment on the claim which underlies these views. It is the following: that judges and juries can, if they can see a witnesses face, tell whether or not they are lying. If this is correct, then it would appear that there is some scientific basis for this position, and that the law, backed by science, would be justified in asserting its authority over religious and cultural practices which hindered or obstructed the discovery of truth.

Unfortunately there is little psychological evidence to support these claims. Indeed, studies which have been carried out in this area suggest that professionals (police, immigration officers) are no better at detecting lies than the ordinary person, and that the ordinary person does no better than 50:50. (The suggestion is that poker players may be the best at detecting lies...). There is, of course, a huge amount of folk belief in this area, a lot which can be traced back to ancient superstitions about guilt or unreliability revealing itself through signs: sweating, failure to make contact, nervous tics and so on. These are entertainingly discussed in a famous work by Hugo Munsterberg, one of the pioneers of criminal psychology, called On the Witness Stand (1908). But while claiming the existence of these 'tells', even Munsterberg acknowledged that further psychological research was needed in order to learn properly how to detect them.

In the continuing absence of convincing findings, the claims of lawyers (and politicians) as to the lie detecting powers of judges and juries are no more than folk beliefs. Video or audio evidence is just as likely to produce the same outcomes, and from a scientific perspective there may even be no good reason why we should not rely on written evidence. And whether witnesses given evidence from behind screens or veils, or from a different room should not really have much impact on the ability of the jury to detect whether they are lying or telling the truth.

So what is really going on here. A more plausible way of understanding what is at stake is in terms of confrontation. This is the belief that the trial is at base about bringing the main protagonists together and that the truth will emerge from a series of confrontations: between the accused and their accusers, the lawyer and the witness, between lawyer for the prosecution and defence. This is bolstered by the mythology of the adversarial trial: stories of brilliant barristers breaking down witnesses, of accused persons cracking under sustained cross examination, of the coup de theatre that undermines a key witness. This is the British way of justice, but the audience is less the jury than a broader public who are to be convinced of the reliability of our institutions of justice and those who work in them.

And this is the point: what is really at stake is a clash between the sense of the trial as an event and something which might undermine this. The witness in a veil is seen as undermining this without good reason (though of course there are many excellent reasons for respecting cultural difference). It really has nothing to do with truth, and it would be better for all if this were recognised from the start.

Friday, 25 October 2013

On pumas and Scots criminal law

In March 1976 the landlord of a bar in Leith, Edinburgh was charged in the following terms:
[that he did] keep and allow to go at large, without being under any appropriate care, restraint or control, a puma belonging to (him) or under (his) charge, or in (his) possession, while members of the public were in said public house, and said puma attacked and injured (X and Y) and did recklessly disregard the lives and safety of the public.

The puma in question was apparently normally kept in a cage in the lounge bar (not the public bar). It had apparently at some point been released from its cage by the landlord and had attacked two persons who, according the report, "had previously been asked to leave the premises". The Sheriff convicted the accused of the charge, apparently on the grounds that a puma might be distinguished from domesticated animals kept as pets because it had the
"instincts and unpredictable impulses of a wild animal, rather than a domestic dog, in which ferocity may be a manifestation of its propensity to protect its master's person, property or territory"
Moreover, the fact that the accused had released the puma was evidence of a recklessness towards the safety of others (!).

It would be nice to report that the cases led to the refinement of some legal principle, but unfortunately that is not the case. The landlord appealed against the conviction but, for reasons which have not been recorded, the appeal was dismissed.

An Italian restaurant on the site
of the original Fairley's
For some reason I have not heard of this case before, but it surely deserves to be better known. The decision was not reported, though there a short report in the Journal of Criminal Law (1977 41 J Crim Law 57 for those how have access to the journal). Presumably there was some coverage in the local papers at the time (it is hard to imagine they would ignore it) though I have not had time to check. There is, however, some further information here, which paints an interesting picture of Leith in the 1970s - and raises the possibility that the puma was not the wildest occupant of Fairley's at the time.

Wednesday, 16 October 2013

On Bentham on pederasty (or offences against one's self)

One of the delights of the internet is that it is a treasure trove of obscure or little known documents, access to which would previously only have been open to those with very good libraries - or the time and resources to travel to those libraries. So it was that while I was that, while I was looking for information on Jeremy Bentham's theory of codification, I discovered this fascinating document: Bentham's essay on pederasty, or offences against one's self.

Jeremy Bentham
I have written on Bentham before - about his general theory of criminal law and punishment - but this shorter essay culled from amongst his voluminous unpublished writings is something else altogether. The general approach is in line with his attitude towards the common law and his project of reclassifying the criminal law, but the text, and its history, are revealing in other ways.

In this essay, which was written around 1785 but never published in his lifetime, Bentham examines the justifications given for the criminalisation of so-called "unnatural offences", principally the sexual offences of sodomy, bestiality and masturbation, and the severe punishments which attached to these crimes. He argues that there is little or no evidence that they harm either individuals or society and that there is no possible justification for harsh punishments imposed by the law.

He systematically works through the reasons that have been offered in support of these crimes by a series of distingushed writers, from William Blackstone, to Montesquieu to Voltaire, and dismisses them in turn as riddled with inconsistencies and prejudices and having no possible rational basis.

Thus, there is no evidence that the conduct produces pain; rather it produces pleasure. It cannot be an offence against security or the peace (Blackstone), if it is practised with consent. It cannot hurt the population (Voltaire), or rob women of their rights (!) or be harmful to marriage. And indeed, he asks, if homosexual sex is regularly practised on what basis can it be termed unnatural? The justification for such offences, he concludes seems to lie in a hatred of pleasure, rather than in any possible harm caused by the conduct itself, a position which has been set up by the "prejudices of false philosophy and the terrors of a false religion". In place of this, he argues that on the principle of utility  he argues that there is no justification for these offences (although he does recommend "domestic discipline" as a remedy for for the pernicious and enervating effects of masturbation).

This, then, is a fascinating document, both ahead of its time and strangely of its time. It is ahead of its time as the first known argument for reform of the law of homosexual offences in England, and it demonstrates as characteristic clarity of purpose and rhetorical flourish in its critique of existing criminal laws. It is also strikingly contemporary in its classification of such offences as "offences against one's self" - and thus not to be criminalised in the absence of either harm to oneself or others (or social harm). In this it prefigures the better known work of his pupil, John Stuart Mill, who set out what has come to be known in modern thought as the harm principle: that criminalisation without harm was unjustifiable. And it is also modern in its critique of criminal laws based on moral beliefs or prejudices, and in its aim of replacing prejudice with laws based on reason.

But at the same time it appears very much of its time. This is nowhere more apparent than in the title.  Pederasty for Bentham was the term for consenting homosexual intercourse between men (the term homosexual was not coined until the work of Kraft-Ebbing in the late nineteenth century, and pederasty did not acquire its specifically contemporary meaning of sex between a man and a boy until later). Consistently with this, his examples of the permissibility (and non-harmfulness) of homosexual sex were drawn principally from classical sources. But most notable of all is the tone of the essay, which would sit uncomfortably with modern arguments for law reform. Bentham makes little effort to hide his distaste, repeatedly referring to the perverted tastes of those who engage in such conduct. Indeed, the tone of the essay as a whole struggles to reconcile his arguments about a rational approach to the law with his personal beliefs about homosexual conduct.

And this brings us to the question of why it was not published. It was apparently originally conceived as part of the schema of classification contained in his book On the Principles and Morals of Legislation, one of his few major works that was published in his lifetime. In this book Bentham
proposes a new scheme for the classification of criminal laws that would be consistent with his utilitarian principles (see ch.16). In place of the categories of the common law he proposed a more rational schema based around the interests to be protected by the law, moving from offences against individuals (person, reputation) to objects associated with persons (such as property), to various kinds of public offences (including offences against the positive increase of the national felicity...). And he sought to examine existing laws to see how they would fall within his new classification - either being reclassified or abandoned altogether.

It is easy to see how the essay fits in this schema. But at the last moment it appears that he blanched at publication of this section. According to the editor of this published version, his notes reveal that hee feared that this was a step too far, that it would be damaging to his reputation to be associated with these beliefs, to appear to support homosexual conduct. And so the essay was quietly shelved

So it appears that Bentham the iconoclast, the attacker of irrational beliefs and sacred cows, was not without his limits after all. But if this disappoints, we should be grateful that this work is now freely available, for it offers fascinating insight into both the his beliefs and the mores of his time.

Wednesday, 9 October 2013

On the Appin Murder (1752)

I have been struggling to know what to make of this story - the apparent attempt to re-try James Stewart, convicted and hanged for the murder of Colin Campbell in 1752 (better known as the Appin Murder). A team of modern day forensic experts re-examined the evidence, relating to ballistics etc, before a retired senior judge, and a jury of the public were asked to determine guilt.

Not surprisingly, for it is widely accepted that he was made a scapegoat for the killing, they concluded that James Stewart must have been innocent, and that Alan Breck Stewart (the main suspect, who James Stewart
was charged with abetting) could not be held responsible in the absence of evidence as to his whereabouts at the time. Indeed they conclude therefore that if there was no clear evidence that Breck Stewart committed the crime, then James Stewart could not have abetted its commission, and that there was no basis for an indictment against him.

But this is hardly news. The trial is a notorious miscarriage of justice: a politically motivated trial aimed at suppressing dissent in the turbulent period following the 1745 rebellion. James was scapegoated, a convenient target for the authorities because he was known to have quarreled with the victim and was, moreover, a leading member of the rebellious local Stewarts. The trial was held in Campbell country - Inverary - before an unsympathetic judge and jury. Legal argument was limited and legal niceties such as doctrines of complicity were brushed aside in the rush to obtain a conviction. Moreover, there was nothing that we would understand as forensic evidence, and the kind of legal protections that we take for granted today were considerably less robust. So it is hardly surprising that, judged by modern standards of forensic evidence and criminal procedure, the outcome is found wanting. So why do it

James Stewart's Monument,
Perhaps the only novel finding is that the two shots which were fired came from two different muskets, rather than a single one, as had usually been assumed - a finding which resonates in a strange way with contemporary conspiracy theories about multiple shooters of President Kennedy in Dallas. But this does not help to identify the shooter, or tell us if Breck Stewart fired one of the shot. It is, though, consistent with the idea that there was a planned element to the attack, as the two shots must have been fired more or less simultaneously as witnesses reported hearing a single shot and it was long assumed that the two musket balls found in the victim had been shot at the same time from the same gun. This underlines the theory that the attack was motivated by political discontent - as we knew anyway - though this still does not support any assumption that James Stewart was involved.

Robert Louis Stevenson

The case clearly fascinates - though it is likely that few would have heard of it today were it not for the brilliant novels of Robert Louis Stevenson (Kidnapped and Catriona) which took the case as their backdrop.
Even in these works Stevenson is careful to hedge his bets - while he seems to suggest that Breck Stewart is responsible, he does not go so far as to depict him actually pulling the trigger, and in other respects paints him as a romantic rebel with whom the reader sympathises. And as befits someone who is known to have read the legal account of the trial (and was trained as a lawyer) he does not pretend that the trial was fair - and even without the benefit of contemporary forensic evidence he is able to lay bare the injustice of the outcome.

So faced with these alternatives it is surely better by far just go and read the novels - for which we surely need no excuse.

Thursday, 26 September 2013

On Crime in 1946

This is a link to a long article that I really like. The writer, Duncan Campbell, asks whether crime in 1946 had certain characteristics - a question prompted by a review of three books about notorious crimes committed in that year.

It seems clear that different periods see certain crimes and trials as emblematic, as capturing some features of a particular moment. Crimes and criminal trials are often seen as offering a kind of unique perspective on society. The trial offers a moment of introspection, inviting observers to reflect on the state of the nation. And certain crimes are also seen as epochal - though this can often be judged only in retrospect - revealing the emergence of new kinds of criminality. Most notoriously, the Jack the Ripper crimes are seen as the the origin of the modern serial killer, but even in less dramatic form it is possible to see new crimes or shifts in the ways that crimes are committed.

Neville Heath
Does it also reveal something about the state of the criminal law? I suspect that it does. New offences are created in response to particular crimes or moral panics. But I suspect that more than that might be going on as well. There might be two ways of thinking about this. On the one hand it is important to look at patterns of prosecution: why, given the multitude of crimes on the books, are certain crimes prosecuted in certain periods and not in others? Campbell's account points to the significance of crimes like bigamy, rarely prosecuted these days, but easily committed in a time of social flux at the end of the war when people could perhaps move around and drop social connections and fashion new identities more easily than is possible now. Also important, though, was the transition from wartime laws and regulations to a more settled state of law and order - when certain kinds of illegality were tolerated differently.

People like Neville Heath were able to exploit the uncertainties in the legal order. Although the wartime period saw intense regulation of food production and the management of resources, there was also a widespread black market, the existence of which was tolerated in many areas - at least until the end of the war. There were many homeless people, or those who had lost their papers, as a result of bombing, and these mingled with those, such as Heath or Hagger (also mentioned in the article) who were deserters and had reason to conceal their identity. And of course there was a general sense of insecurity brought on by the war and its consequences that the institutions of social order, such as the criminal law were struggling to rebuild. This was, no doubt, not as dramatic as in, say, Berlin at the end of the war, where contemporary accounts suggest the existence of a more radical kind of lawlessness, but there was unquestionably a different degree or kind of social and civil order from that which is familiar to us today. And this offered opportunities and new kinds of vulnerabilities, as the stories told by Campbell make clear.

This raises much bigger questions about the relationship between criminal law and social and civil order, which I hope to return to at some point soon.

Tuesday, 24 September 2013

On the criminalization of HIV transmission

This is just a brief follow up to earlier posts on the impact of criminalization of HIV transmission. This video is a fascinating review of much of the social science research that has been carried out on the negative impact of the criminal law in this area.

[I am having problems uploading the video, so for now here is a link and I hope to sort this shortly]

It is a depressing story, but the central message is very clear: criminal law measures which are aimed at reducing the harm of HIV transmission by seeking to deter risky conduct by the threat of sanctions are having the opposite effect in this area.

Tuesday, 17 September 2013

On Criminal Law and the Modernist Novel

I am very pleased to be able to sing the praises of a new book, with just this title, that has just been published by Cambridge University Press. The book is by Rex Ferguson and explores the relationship between literary and legal modernism, looking in particular at the work of EM Forster, Marcel Proust and Ford Madox Ford. I also have to declare an interest here: I was lucky enough to be one of the supervisors of the original PhD which the book is based on, and feel a tremendous sense of vicarious pride at seeing the work in print.

The central claim is simple enough. The modernist novel was based, amongst other things, on a sense of the unreliability of memory or the inability to reconstruct reality. The omniscient external narrator of the Victorian realist novel was replaced by unreliable narrator of the modernist novel. Experience, as a source of access to reality was undermined or questioned. And this, it is argued, was not simply something internal to the novel, but was a response to a broader social and cultural crisis at the turn of the twentieth century.

This much seems clear in relation to the novel (though to state it so briefly is to fail to do justice to Ferguson's argument), but what does it have to do with law? The life of the law, as Oliver Wendell Holmes famously asserted, is experience, and criminal trials, in particular, claim the ability to reconstruct events as they really happened on the basis (amongst other things) of the experience of witnesses. Did criminal law and theories of evidence and the trial remain completely untouched by the advent of modernism and this crisis of experience?

Ferguson's major contribution in his book is to show that they did not; indeed it is hard to imagine how they could have done, even if the law's self image is one of continuing (not to say overweening) self-confidence in its traditional procedures for establishing proof. In his careful analysis of forensic developments of the early twentieth century - fingerprints, graphology - Ferguson shows how the law sought new forms of reliable evidence to supplement or supplant the unreliable testimony of witnesses. And most importantly he suggests that the establishment of Courts of Appeal able to review and overturn the verdicts of trial courts (in England and Wales in 1906 and in Scotland in 1926) was a response to the same crisis that gave rise to the modernist novel - the recognition of the potential fallibility of the criminal trial and its truth finding procedures.

And lest this sound unduly esoteric to some readers, we should note that this is an argument with huge contemporary relevance. As I have noted in earlier posts, Lord Carloway and the Scottish Government are currently proposing the abolition of the requirement of corroboration. Their argument (in somewhat condensed form) is that far from enabling the establishment of truth, the requirement of corroboration stands
in the way of truth, preventing prosecutions where we (the Crown, the police) know that someone is really guilty. This is a claim that is based on certain unexplored assumptions about truth and how we access it - notably that certain bodies possess a kind of professional experience which give them a superior access to truth, and that the criminal trial should mirror this in some way. (And that legal procedures or safeguards block access to truth rather than being central to the process of establishing it).

Irrespective of the rights or wrongs of Carloway's view, what is important here is that we should be examining the assumptions which underlie his position - precisely the sort of full investigation and debate which the Scottish Government seems to want to avoid. The value of  Ferguson's book is that it addresses precisely these kind of underlying questions about trust in experience, and the place for legal safeguards as a response to uncertainty.

Monday, 9 September 2013

On the Criminal Justice (Scotland) Bill

Earlier this summer the Scottish Government published a draft Criminal Justice Bill. Much of the content of this Bill had been trailed in advance. Broadly speaking the Bill is seeking to implement the findings of the Carloway Review, which in turn was a response to the decision in the case of Cadder which held that the Scottish practice of allowing the police to detain and question suspects for a period of up to 6 hours without access to legal advice or assistance (itself created by an earlier Criminal Justice (S.) Act in 1980) was inconsistent with the European Convention of Human Rights.

Lord Carloway
Much of the Bill seems entirely sensible and broadly consistent with the recommendations of the Carloway Review and largely positive responses to the review: it accordingly reforms the law relating to powers of arrest, sets the period for which a person may be held in custody following arrest, and sets out the right of access to legal advice. The more controversial part of Bill relates to the proposed abolition of corroboration (ss.57-61).

For those not familiar with Scots law, the rule is basically that the proof of any essential fact in a criminal trial needs to be supported by two independent sources of evidence. The origins of this rule can be traced back to medieval canon law, as a response to the abolition of trial by ordeal in the thirteenth century, and it was essentially an attempt to quantify the amount of evidence required for a conviction. Most modern systems of criminal law have long since departed from any requirement of corroboration, preferring instead to rely on understanding of the weight and reliability of evidence (more or less the idea that a case should not necessarily fail where there is one strong piece of evidence from a reliable source but no second piece of corroborating evidence). Scots law, by contrast, has not only retained the rule, but for long time also trumpeted it as an indication of the high level of protection given to an accused person under Scots law.

Now irrespective of the pros and cons of the debate about corroboration, it seems clear that if you are going to abolish a rule that is said to provide protection to an accused (and this in response to a decision which directly challenged Scots law over the strength of protections given to an accused in respect of legal advice on arrest), you need to put a robust new system of protection in place. So what does the Bill offer?

The answer is hidden away in s.70:
A jury of 15 members may return a verdict of guilty only if at least 10 of them are in favour of that verdict.
This is a change from current law, where a person can be convicted on a simple 8:7 majority (which, incidentally, has never seemed like much of a protection to me). But how strong a protection is this? One possible measure is to compare this to the majorities required in other jurisdiction that use juries (and here I am pleased to plug the work of my colleagues, James Chalmers and Fiona Leverick, who have looked into this). And the shocking finding here is that most lay jury systems worldwide typically require either unanimity or near-unanimity in order for an accused person to be convicted. They conclude:
the effect of the Criminal Justice (Scotland) Bill as it now stands would be to reduce the level of protection against wrongful conviction offered in Scotland below that offered in any other comparable jurisdiction.
Scottish Justice Secretary Kenny MacAskill:
Corroboration should be abolished...
It is obviously to be hoped that the Scottish Government will take this criticism seriously. It is not a knee jerk reaction to proposals for the abolition to abolish corroboration, but is based on research and extensive comparative knowledge of criminal justice systems. But the signs are perhaps not great. Similar research based criticisms were made of Lord Carloway's argument about corroboration in his report, but these were never addressed. And now the Government seems to want to press ahead with the abolition of corroboration notwithstanding the disquiet expressed by many. The legislative process is committed to public consultation and review, but if the responses to this review are not taken into account we would be entitled to ask whether this commitment is purely cosmetic.

[Our full response to the Bill, and a link to the published findings of Chalmers and Leverick on jury majorities can be found here]

Tuesday, 3 September 2013

On criminal codes

When we think of criminal codes it is normal, at least for me, to think of the great codifications of criminal law that took places from the late eighteenth and nineteenth centuries. But of course there is another sense of 'criminal code' - that of a code for criminals - and this is perhaps why the former sort are often referred to as penal codes (though this is confusing as they do not only detail punishments, but also codify forms of permissible and impermissible conduct). The relationship between crime and punishment in the modern criminal law is a complex one, and is a topic that I  shall return to in future posts, but for now I want to say something about criminal codes as codes for criminals.

The thought is prompted by the death of the famous crime writer, Elmore Leonard, last month. As a notable
stylist, he is well known for his 10 rules of good writing (the writer's code). Slightly less well known are his rules for successful armed robbery (from the novel Swag). These are:
1. Always be polite on the job, say please and thank you. 
2. Never say more than is necessary. 
3. Never call your partner by name – unless you use a made-up name. 
4. Dress well. Never look suspicious or like a bum. 
5. Never use your own car. 
6. Never count the take in the car . 
7. Never flash money in a bar or with women   
8. Never go back to an old bar or hangout once you have moved up. 
9. Never tell anyone your business. Never tell a junkie even your name. 
10. Never associate with people known to be in crime.
All of this seems eminently sensible - and of course in the novel things start to go wrong for the protagonists when they start to ignore their own rules.

While I don't want to encourage crime, it does make me wonder what other rules for the successful commission of crime we might come up, based on what seem to be common errors. Here is a start on my alternative criminal code (based on cases I have read about):
  • If you are fraudulently claiming disability benefit, it is probably better not to participate in a 10K race; and if you must, try to avoid having your picture taken at the finishing line.
  • If you are planning to poison someone do not tell the chemist that the poison you are buying is to kill rats, especially if there is not trace of a rodent problem at your home.
  • Most people offering their services as contract killers on the internet are probably undercover police officers (from the recent Canadian case of Ryan)
  • If the you and your associate in crime are arrested, it is best to avoid discussing your exploits within earshot of the police.
If you know of other rules, please add them below.

Monday, 1 July 2013

On holiday

Thanks to everyone for your support over the last 12 months. I am now on holiday and will resume posting on the blog in September 2013

Tuesday, 25 June 2013

On imprisoning bankers

The Report of the UK Parliamentary Commission on Banking Standards made a bit of a splash last week, with a lot of the media attention focusing on the proposal to create a new criminal offence of reckless misconduct in the management of a bank (see volume II chapter 10), which might ultimately lead to bankers being sent to prison. It is seen as important, in the words of the report, that there be "robust tools for holding those responsible to account and imposing appropriate penalties".

It is undoubtedly the case that there is a certain populist appeal  to this kind of proposal. After all, as banks like RBS and HBOS were exposed as having run huge financial risks and being on the verge of collapse, there was a lot of public anger directed at those individuals who were perceived to have mismanaged the institutions. Fred Goodwin's Edinburgh home was attacked and he was ultimately stripped of his knighthood. A new criminal offence would play well with the public discontent with the conduct of the big banks. And there is a kind of schadenfreude involved as well. For years, critical criminologists have complained that certain kinds of minor property or street crime are sanctioned more heavily than the more serious financial wrongs committed by those such as bankers or financial institutions - yet they continue, not only to get away with their financial 'crimes', but also to be handsomely rewarded, while petty thieves are relentlessly prosecuted. As the celebrated title of one book has it: the rich get richer and the poor get prison.

The arguments given in favour of individual criminal responsibility are as follows:
  • That the existing sanctions regime (ineffective as it is) is directed at institutions rather than individuals, but that certain individuals play an important role in determining the policy and culture of the institution.
  • That the potential harms created are public harms rather than private harms (i.e. internal only to the banks) because of the damage to market confidence and the use of public funds to bail out the banks
  • That criminal sanctions could act as a deterrent to individuals, and that this could alter the conduct of the institution as various responsible individuals made more effort to supervise the conduct of those under their direction.

However, as the report itself notes, enforcement agencies already experience huge difficulties in establishing any kind of fault. In the words of one witness, Tracy McDermott, talking about previous investigations:
    We invested a significant amount of time and resource into the investigations we did into the failed banks, but we were not able to establish the evidence necessary to take regulatory action, so even if there had been a criminal offence on the statute book, that would not have got us there ... If the evidence is not there, it will not be there for criminal cases in the same way as it won't be there for regulatory cases. You can debate whether we got that call right or wrong, but ultimately the evidential standard is higher in criminal cases
There are a number of reasons given for this: the standard of proof in criminal cases is higher than in civil cases; a successful criminal investigation requires huge resources to filter the enormous number of documents, which regulators or prosecutors do not possess; and, crucially, responsibility is diffused in large organisations, with few (if any) individuals have direct oversight or knowledge of all decisions that are taken.

Any new criminal offence is, thus, likely to face a number of potential difficulties. What about the offence proposed by the Commission?

The proposed offence would  be that of reckless misconduct in the management of a bank. There are a number of features to note about this. The first is that this requires 'misconduct'. Thus while the need for an offence is framed in terms of the harm caused, on the face of it this does not require any actual harm, only misconduct (and presumably potential harm). This might make it easier to prove as it would not be necessary to show that the conduct led to the specified harm.  However, what is required is presumably some conduct that is a clear departure from 'normal' management practices, and a lot would rest on how these were defined or understood.

The second point to note is that the crime is 'reckless' misconduct. This would mean, according to the Commission, that the normal criminal law standard of subjective recklessness should apply. While this may be preferable to a strict liability offence or an offence of negligence, it would be hard to prove. Proof of recklessness in English law requires proof that the person charged was aware of the risk and that it was unreasonable in the circumstances for them to take that risk. This may give rise to two significant problems. First, in a large and complex organisation, it is notoriously difficult to establish who was aware of what, as decisions are delegated or taken by committees. The Commission attempt to get around this by stressing that the important factor is whether or not a manager or director should have been aware of the conduct of those under their charge - the so-called accountability structure - but this may conflict with the criminal law standard of subjective awareness. The second difficulty will be that of establishing what is unreasonable in the circumstances. Is this unreasonable by the standards of the average banker? If this is the case, if the culture of the banks is 'out of control' it may be hard to establish unreasonableness because the defence will be that other banks were doing the same thing - and that the conduct was therefore reasonable. It may be that this would catch only clear or egregious cases of misconduct - which might very well already be criminal under the laws of fraud, market abuse or insider dealing anyway.

So where does this leave us? The Report is recommending the creation of an offence that is to be used only in rare cases where the most serious harm has resulted as a result of (presumably serious misconduct). It will have a high standard of fault, and therefore be difficult to prove, to cover situations where it is already conceded that it is difficult to meet even the lower civil standard of proof in enforcing regulations. It is, then, to imagine that we will see any bankers being jailed any time soon.

Of course, it might then be replied that the point is to show that the criminal law reaches these areas - that no one, not even bankers, is above or beyond the law. This might be important as a kind of symbolic politics, but it is surely pointless to create new criminal offences that clearly overlap with existing offences and which have little prospect of successful enforcement. There is undoubtedly a case for a creating a meaningful sanction regime in this sector, which would include criminal penalties, but this proposal does not make that case.

Tuesday, 11 June 2013

On Trust and Violence

I have spent a lot of time of the past few months reading and thinking about a fascinating book called Trust and Violence by Jan Philipp Reemtsma. It is not directly about criminal law, or even about law at all (except indirectly), but it raises a lot of important questions about the role (and limits) of institutions such as the criminal law in modern society.

Reemtsma identifies three central questions. First, how does modern Western society legitimate the use of violence, and what was distinctive about the way that it did so? Second, how does this culture reconcile its self image of decreasing violence with the actual violence that it produces? And third, why is it that the violence excesses of the twentieth century - the holocaust, the Stalinist purges, wars - have not prompted us to abandon the project of modernity altogether? It became commonplace to ask how we could go on after atrocities on this scale. Reemtsma's response is to raise the flip side of this question: given that we did go on, and continue to go on in spite of these outbursts of extreme violence, what were the kind of social mechanisms and institutions that made this possible?

His answers to these questions are wide ranging. He discusses literature, history, social theory and more. And the text is challenging, but worth the effort. I can't really do justice to the complexity and richness of the argument, so I shan't try here, though I will try to discuss it in relation to specific topics in later posts. 

For now, let me leave you with this video of a talk he gave at University College Dublin. 

Tuesday, 14 May 2013

On The Fine Art of Strange Crimes

Welcome to the city of Red Wheelbarrow, where the world's greatest detective has yet to meet the crime he can't solve—every criminal in Red Wheelbarrow is caught and convicted thanks to Detective Gould's brilliant mind and cutting-edge spy technology.

But lately there has been a rash of crimes so eccentric and random that even Detective Gould is stumped. Will he discover the connection between the compulsive chair thief, the novelist who uses purloined street signs to write her magnum opus, and the photographer who secretly documents peoples' most anguished personal moments? Or will Detective Gould finally meet his match?

This is a wonderful, and wonderfully engaging take on the tradition of the hard boiled detective. In this world it is the art of theft, as much as the theft of art, that is important. And this poses a different kind of challenge to the indefatigable Detective Gould. But my favorite part is the interrogations, as suspect and detective engage in metaphysical and political discussions of the nature of crime.

Well worth a look.

Thursday, 9 May 2013

On the meaning of consent in the Sexual Offences Act 2009

There has been a slightly worrying development in Scotland with respect to the interpretation of the new Sexual Offences Act 2009. The Court of Appeal has overturned the conviction for rape of a man who had sex with a woman who was apparently unconscious at the time the intercourse started, and who claims that she withdrew consent immediately she regained consciousness, while the intercourse was still going on.

This is how it has been reported in Scottish Legal News:
The 24-year-old student told the jury that she could not remember how the sex started on account of being intoxicated but subsequently withdrew her consent upon realising what was happening.

Lord Eassie, Lord Brailsford and Lord Philip at the High Court of Justiciary in Edinburgh ruled that Mr Mutebi had a “reasonable belief“ that the woman was a willing partner and on the facts there was not enough evidence to counter that claim.

No force had been used on the woman and it was held her distress the following morning was not sufficient to support a claim that Mr Mutebi knew she did not consent.
While the full judgement has not yet been published, and it may be that when it is the Court will come up with some convincing reasons for this decision, but on the face of it it is puzzling, and seems to run counter to the stated intentions of the Act.

There are two reasons for this. First, under the Act, it is explicitly stated in s.13(2)a) that there can be no free agreement where "where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it." So, where a complainer was so drunk that she could not remember how the sex started (and assuming that this evidence is accepted), this by definition must be regarded as rape.

Second, under s.15 it is explicitly provided that consent may be withdrawn at any time, and that if the conduct then continues then it takes place without consent. So, even if the court did not accept the complainer's story about being so intoxicated that she did not know when the intercourse started, if she was a credible witness on the issue of withdrawal of consent, then the intercourse should have been regarded as non-consensual - and the accused could not then be regarded as having a reasonable belief in her consent.

This all seems fairly clear, and was discussed at great length in response to the Law Commission Report recommending reform of the law, the passage of the Act through Parliament and in training delivered to the judiciary preceding the implementation of the Act. So how has it come to this?

My suspicion is that confusion has arisen from two sources - one related to the drafting of the Act, and one more general. 

Under the Act rape is defined in s.1 as:
If a person (A), with A's penis a) without another person (B) consenting and b) without any reasonable belief that B consents penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, then A commits an offence, to be known as the offence of rape.
Now this is hardly the most lucid piece of drafting around (note that the recklessness appears to refer to the conduct of penetration rather than the state of mind of A), but it seems to require two steps: that the conduct should be without the consent of B, and that A should not have any reasonable belief that B consents. Now the vagueness is this: do the definitions of situations where there can be no consent (in s.13) apply to both steps, or only to the former. In other words, do the situations set out in the Act refer to situations where  a) there is no consent/free agreement, and b) that there can accordingly be no reasonable belief in consent, or do they only refer to the first step, meaning that the Crown would still have to prove the absence of reasonable belief? In my view, it must be the first of these, for otherwise the whole purpose of the law must be undermined. But it appears that the Appeal Court has taken the alternative view.

If this is the case then it gives rise to another problem, which seems to be referred to in the press report, namely that if it is necessary to show the absence of reasonable belief (the state of mind of A), then the Crown must corroborate this somehow. And here the Court has fallen back on the pre-2009 law which has held that the beliefs or mental state of the accused cannot be corroborated by evidence of the distress of the complainer.

So this decision seems to return us to where we were before the Act was passed, as s.13 has been interpreted narrowly, and all the old problems of corroboration then return. And that is surely grounds for concern.

Tuesday, 30 April 2013

On when the law is an ass

I have copied in the text of a story reported on the BBC Scotland News website yesterday.
A homeless man who was found sitting outside a bank with a bright orange toy gun has been convicted of having an "imitation weapon". Scott Park, 33, was handcuffed and led away by police after being found with the toy gun outside the Royal Bank of Scotland in Stirling in June last year.
Initially he was charged with a breach of the peace but prosecutors changed it to one of breaching the Firearms Act.
During the sheriff-only trial at Stirling Sheriff Court, CCTV footage was shown of Park huddled on the steps of the bank, which was closed at the time, as passers-by occasionally dropped coins in his plastic cup.
Police were alerted after a teenage girl saw the bright orange gun fall out of his pocket. She said she asked him what he was going to do with it and that he had replied he was going to use it if people refused to give him money. She said she was not sure if he was joking.
Depute fiscal Lindsey Brooks, prosecuting, argued a toy gun could fall foul of the Firearms Act if it "looked like a gun". Alistair Burleigh, defending, said the item his client had was "fluorescent bright orange, entirely constructed of plastic, and quite obviously simply a toy". A firearms expert told the court the gun was perfectly legal and it was bright orange because legislation says that non-imitation toy guns have to be a bright colour to distinguish them from real guns.
But Sheriff O'Carroll said it had the appearance of a firearm. He said children had "lawful excuse" for possessing such things - for playing cowboys and Indians. He said the case raised "a major public policy issue".

While there may have been other things going on that we are not aware of from this short report, on the face of it this looks ridiculous. It hardly bears comment, but I will make one or two points.

First, it appears that he was charged under the Firearms Act 1968 s.19, the text of which is as follows:

A person commits an offence if, without lawful authority or reasonable excuse (the proof whereof lies on him) he has with him in a public place
(a) a loaded shot gun,
(b) an air weapon (whether loaded or not),
(c) any other firearm (whether loaded or not) together with ammunition suitable for use in that firearm, or
(d) an imitation firearm

The obvious point concerns the definition of an imitation firearm. It seems fairly clear that everything that looks like a gun or is gun shaped should not be treated in law as an imitation firearm. This, indeed, is the point made by the defence expert when arguing that toy guns were made in such colours precisely so they could not be mistaken for real firearms. This not only creates an inconsistency in the law (what is legal for one purpose is illegal for another), but raises the possibility that that the law is dramatically extended here as any possessor of a toy gun in a public place (except children - though we will come to that in a moment) is committing an offence.

Second, what is a reasonable excuse? It is obviously not enough of an excuse that something is a toy, is flourescent orange, and that no reasonable person over the age of 5 would mistake it for the real thing. It is an excuse, it appears, to be a child playing "cowboys and Indians". This is extraordinary. Presumably a child under the age of 12 could not be charged with an offence anyway (unless the Sheriff has forgotten the recent change in the law); and in my experience children over age of 12 have usually grown out of playing with toy guns. But it is also an extraordinary failure of judicial training. Is this Indians from South Asia, or Native Americans? His language is out of date and out of touch.
Third, while it is easy to criticisze the Sheriff here, we should not forget that it takes more than a judge to produce this outcome. Both police and prosecution must bear some responsibility for this coming to court. It is often argued by the police in such cases that the charge is merely a pretext to offer help or assistance to a person, or to take them out of a situation where they are causing distress to the public. That may have been the case here - and we do not know - but it is hardly an excuse for abusing the law in this way.

Finally, the Sheriff apparently states that there is a major public policy issue. For once I agree with him. There is a major issue here, but it is not the one he is referring to. The real issues here is the over-criminalization of the homeless, and the misuse of the criminal law. And responsibility for that lies with the police, the prosecution and the courts.

Monday, 29 April 2013

On "Act of Terror"

It is well known that the Terrorism Acts in the UK and elsewhere have dramatically extended criminal law and police powers, with powers to stop and search  being widely used against the certain ethnic communities and disproportionate use of public order powers. One of these powers is the power under s.58A of the Terrorism Act 2000 (added by s.76 of the Counter-Terrorism Act 2008). Under this section it is an offence to elicit or attempt to elicit information about a police constable or to publish or communicate such information. The meaning of the wording of the section is obscure, to say the least, but it has been widely interpreted as permitting the police to stop members of the public filming police officers. Official Metropolitan Police guidelines now point out that:
It would ordinarily be unlawful to use section 58A to arrest people photographing police officers in the course of normal policing activities, including protests because there would not normally be grounds for suspecting that the photographs were being taken to provide assistance to a terrorist. An arrest would only be lawful if an arresting officer had a reasonable suspicion that the photographs were being taken in order to provide practical assistance to a person committing or preparing an act of terrorism.
However, this entertaining short video suggests that these guidelines are not always being followed in practice:

There are a number of reasons for concern about this. First, is that camera phones are increasingly being used to provide evidence of police misconduct and hold the police to account for exceeding their powers. The police should not be capable of hiding behind legislation like this as a means of evading responsibility for their actions. The police are public officers acting in a public capacity and that means that they must visibly adhere to certain standards of conduct. And this is one way of ensuring that they do so.

Second, this seems like an extraordinarily poorly drafted section. Presumably (and I am guessing here) the aim of the section is to prevent the passing on or publishing of specific information (name, address etc) about identifiable members of the police or armed forces that might lead to them becoming the object of a terrorist attack. I have in mind something like publishing personal details about police officers engaged in specific counter-terrorism activities or something like that. If this is the case, there must surely be a way of drafting legislation in such a way as to make this clear - and to rule out the possibility of looser interpretations. If the police are to blame for interpreting the section more broadly than this, some responsibility must also lie with Parliament for making it so easy.

Finally, in the words of the Clash - Know Your Rights! It is not an offence to film a police officer, and if they do attempt to stop you doing this, you should know what to do.

Monday, 22 April 2013

On 'An American Tragedy' and the criminal law

An American Tragedy was a hugely popular novel by Theodore Dreiser, first published in 1925. It is probably not much read now (though it was filmed at least twice), but it has a fascinating connection with the criminal law. In the first place, which is not so unusual, the novel was based on an actual case. More unusually the novel then became the basis for discussion of the criminal law.

The plot of the novel concerned an ambitious young man, Clyde Griffiths. Clyde gets his working class lover, Roberta Alden, pregnant but he does not want to marry her, because he hopes for a marriage that would advance his career. When he is unable to obtain an abortion for Roberta, he plots to kill her. Telling her that they should run away to get married, they travel to the Adirondack Mountains in upstate New York. Clyde takes Roberta out in a small boat on a secluded lake, planning to capsize the boat and swim to shore - knowing that she could not swim. While in the boat he got cold feet about the plan and realised that he could not follow through on it. However, there is an accident and the boat in fact capsizes; Clyde swims to shore and Roberta is drowned. When Roberta's body is found, Clyde is arrested and charged with capital murder - and eventually executed.

The plot of the novel was based on an actual criminal case that had taken place in 1906 when an ambitious young man called Chester Gillette (note the same initials) had drowned his pregnant lover, Grace Brown, in Big Moose Lake. As in the novel,  it appears that Gillette had convinced Brown to come on the trip with the promise of marriage. He had taken her out on the lake, but had beaten her with a tennis racket and thrown her overboard - and so when her body was found there was clear evidence of foul play. Gillette was captured soon after, having made little attempt to escape, and was tried and convicted of her murder, and executed by electric chair at Auburn Prison, New York.

In spite of the similarities, there are clear differences between the two cases - perhaps reflecting the fact that a novelist has greater opportunity and licence in constructing the interior mental states of his protagonists. The biggest difference in the fictional version is the fact that the reader knows that Clyde has decided not to kill Roberta. In spite of having taken steps towards the completion of his plot, he has reached the point where he has gone back on his original intention. The double irony in the novel is it is at precisely this point that the accident takes place which results in the boat capsizing, and that then Clyde is tried and prosecuted on the basis of evidence of his original plot - and the appearance it gave of an intention to kill, even though he no longer possessed that intention.

The novel sold well (over 50,000 copies by the end of 1926), in spite of critical reviews, and in order to boost publicity yet further the publishers came up with idea of a prize essay contest: the topic "Was Clyde Griffiths guilty of murder in the first degree?". So far so ordinary, but what makes this unusual is that the contest was won by a law professor, Albert Levitt, of Washington and Lee University, who had previously written to Dreiser praising the construction of his 'beautiful legal problem'. He was an unusual character, trained in theology and law, and linked to a circle of progressive academics, and he had recently written a series of papers on the question of mens rea in the criminal law.

Albert Levitt
Levitt's prizewinning essay seems to have received only limited circulation.  It is, nonetheless, a fascinating document. It is in four parts, each of which addresses a different dimension of Griffith's guilt. The first part addresses his legal guilt. On this Levitt is clear: this could not be murder in the first degree. He had no intention to kill at the time the accident took place, and was not under any duty to rescue Roberta. The second part then addressed the question of whether he was guilty under Christian ethics. Here he was equally clear that Clyde was guilty: he had evil in his heart and this may have contributed unconsciously to his actions. He accepted the opportunity offered by the accident, and made no effort to rescue Roberta. Third, he asked whether the jury were right to convict. Here, he praised the formulation of the legal issues in the trial in the novel, and argued that it was reasonable for a jury on the evidence not to believe his claim that he had a change of heart - and to convict on that basis. In other words, in the absence of clear evidence of this change, they were entitled to convict. Finally, and most interestingly, he addressed the question of the extent to which society or the state was responsible. Here he was highly critical of state policies on sex education, which he argued taught outmoded christian doctrine, rather than teaching responsibility about sex, and he argued that the availability of birth control or abortion on demand would have prevented the murder. The state then was to blame for all three deaths.

It might seem like cheating for a law professor to enter and win the contest - he at least seems to have some advantage over the ordinary reader. But the essay offers much more than just an analysis of legal doctrine. It is a fascinating snapshot of progressive views about criminal law from the early part of the century and as such it deserves to be better known.

[The essay was rediscovered and reprinted in 1991 in a journal called Papers on Language and Literature with a short introduction by Philip Gerber. Unfortunately this is not freely available online. Those with access to a university library might want to check it out, though.]