Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 29 January 2014

On theft and rubbish

This story, reported in the Guardian this morning, raises some interesting issues. According to the report, three men were taking items from a rubbish bin behind a supermarket to a value of £33. They had climbed over a wall to get to the bins and were arrested as they left the area. Initially they were apparently to have been charged with burglary, but now are being charged under the Vagrancy Act 1824.

It is easy to see why burglary might not have been an attractive charge here. The offence of burglary is defined in the Theft Act 1968 s.9. Basically it requires entering any building or part of any building with intent to steal (or commit other crimes identified in s.9 subsection 2). Climbing a wall to an enclosed back yard would satisfy the first part of this definition; the problem would be with proving an intent to steal. There are two issues here. First, the prosecution would have to prove that property belonging to another had been taken (s.5), and then they would have to prove that it had been done with a dishonest intention (s.2).

The problem with the first of these is that it can clearly be argued that property which has been thrown out no longer belongs to anyone - or that the fact that it is in a bin is at least prima facie evidence of an intention to discard the property. So the prosecution would have to prove that the food was under the possession or control of the owner. If the food had been contained in streetside bins that were accessible to the public this would surely be impossible; if they were in an enclosed yard then possession or control might be easier to establish as they would not pass out the the supermarket's control until the contents of the bins were physically removed.

However, even if this test were met, it would be difficult to establish dishonesty. It is just conceivable that the prosecution could satisfy the legal test - set out in s.2 of the Act and in the case of Ghosh). This is basically a matter of whether you understood that it would be dishonest or wrong by common standards, even if you believed your condct was right or justifiable. However, if the food were removed because of hunger, or even as a protest against supermarket practices of discarding food which could still be consumed, this would at the very least require the court to engage in a discussion of the legitimacy of such practices and the justifiability of the motives of the defendants. And if went to a jury, as would probably happen, then there is authority that dishonesty is a matter of community standards and it is quite possible that a jury would be willing to acquit.

So we can see why burglary would be difficult to prove. But the Vagrancy Act 1824? The long title of the Act gives a flavour or its style and scope:
An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England
Most of the Act has now been repealed. It was notorious in the 1970s and 1980s as the basis for the so-called 'sus laws' - powers to stop and search which were used disproportionately against the black community. Remaining powers include that of the Crown Court to commit any "incorrigible rogue" to prison (s.10), and a general power under s.3 to imprison chapmen, pedlars, prostitutes, beggars and others deemed idle and disorderly persons. (I'm not making this up - you can read it here).

It would appear that the charge would be under s.4 of the Act. This is basically a long list of undesirable conduct, but includes the phrase "every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose" (a form of criminal trespass). An offender will be deemed a rogue and a vagabond and may be committed to a house of correction for up to 3 months. 

Leaving aside the question of whether there are any houses of correction anymore (we call them prisons these days), this is all very bizarre. The Act is nearly 200 years old, and nothing about it suggests that it is appropriate to our times. If the problem is with the unauthorised entering of the yard then this should either be recriminalised as a specific offence, or probably more appropriately deal with by non-criminal means - speaking to the offenders, or making discarded food available in some other place or giving it to food banks. This is a disproportionate response and it is hard to what what public interest there might be in prosecution.


Thursday, 23 January 2014

On the understanding the history of rape

Things have been pretty quiet on the blog recently, for which I apologize. The main reason for this is that I have been busy researching and writing for my book. One of the areas that I have been working on is the history of sexual offences. I will write more about this in due course, but I wanted to write something first about the challenges of working in this area. One reason for this is because attitudes and beliefs about appropriate sexual conduct were manifestly so different from our own and it is hard both to try and understand conduct in this very different context where it may have had different meanings or significance and to disentangle modern reactions to cases from an attempt to understand the beliefs of contemporaries.

A good way to illustrate this is by looking at one of the cases I have been reading. This is the case of Barton Dorrington from 1788. You can read the whole case (it is not long) by following the link to the Old Bailey Online pages, but the brief facts are as follows.

Dorrington was charged with the rape of Eleanor Masters, a maid servant. In the words of prosecuting counsel, William Garrow, this is what happened next:
she was sent on Tuesday the 15th of May towards Bow, that was the day of Bow-fair; when she had got some distance, she was overtaken by the prisoner, who told her he had often observed her, was very much in love with her, and had a very great disposition to make her his wife; she went about her business and returned; when she returned, she found the prisoner had been at her master's house and enquired for her, and the fact is, that he did come several times afterwards, and still affected to have the same disposition towards her; he told her that he had been a shoemaker, and was now a limner [illustrator or draftsman], and in short, that he wished to marry her. Gentleman; after a considerable number of times, he came on the 16th of May, when all the rest of the family were from home; this young woman let him in and asked him up stairs into the kitchen; he went up with her, and after they had been there a very short time, he tied her hands and put a handkerchief into her mouth, and accomplished that which was his evident purpose from the beginning.
The case was complicated by two further factors. First, notwithstanding these events, when Dorrington returned to her house on the following Monday she left the house and went with him to a place (perhaps appropriately) called Foul Lane in Borough and stayed with him there for a few days, where she was ravished by him again before she was eventually found by her employer. Second, she was found to have given him a note stating the following:
"I promise to be married to Barton Dorrington on his demand, or to pay twenty pounds - Eleanor Masters."
Dorrington was found to possess a number of similar notes in similar terms from different women leading Garrow to conclude that he was a serial rapist who made a practice of attacking vulnerable women and using the promise to marry them (which he clearly never intended to keep) as a way of extorting money.

Masters was the single witness in the case. The first part of her testimony was in response to a series of questions about the attack, where she was repeatedly pressed, in the face of her clear reluctance, to describe the attack in detailed terms "in order that the jury may judge whether it was a rape or no." The second part then related to the events following when she went with him to Foul Lane because, she alleged, he threatened her. But to my great surprise, as she was questioned about being ravished again, the Court suddenly interjects to state that it is wasting time to go further and the prisoner was acquitted.

How should we respond to this case? My initial reaction is one of puzzlement, even upset. Master's story seems credible and it is hard to see why it was not regarded by the court of providing even prima facie evidence of rape. The cross-examination is upsetting, as the demand of the law for chastity and good character on the part of the victim (seemingly personified by Masters) comes into conflict with the need to describe the rape in sufficiently graphic terms to constitute proof. And in other respects the scenario just seems puzzling: why would she have accompanied her alleged attacker after the attack? Why would she have seemingly acquiesced in the demand to marry a man she had met only a day before?

And then, there is that strange note. It seems comprehensible that Dorrington might have said, as Masters testifies, that at the conclusion of the attack he had held out the offer to marry her if she said nothing to anyone. This sort of conduct seems consistent with attackers or abusers in our own time who use threats or promises to secure the silence of their victims. But then why would she have signed a piece of paper promising to marry him "on his demand" or to pay him the substantial sum of 20l - a sum of between 2 and 30,000 pounds in today's money) if she did not?

So what to make of it? One reaction might be that this exemplifies the injustice to women. This was a patriarchal system. Female servants, as single women away from their families, were vulnerable to their masters and were also easily preyed on by sexual predators such as Dorrington. She was victimized - once by the rapist and again by the courts and legal system which did not recognize her claim. This is clearly correct, but is it enough? This approach would see the history of rape as the failure to recognize justice or equality judged from our contemporary perspective, and the problem with this then it is hard to attempt to see what is going on except in these terms. Why was the case dismissed? What was the meaning of Master's conduct? Did she really believe in some way in the promise of marriage?

A second kind of reading of this case has seen it as an example of the attitudes of the courts to malicious prosecution. This approach argues that eighteenth century criminal law was dominated by the fear of false of malicious accusation, as exemplified by the comment of Sir Matthew Hale, that rape is:
an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.
On this view the suspicion was that prosecutrixes would make false claims to hide sexual indiscretions, or to try and force reluctant men into marriage - or simply out of malice. The suggestion here is that, in cases such as this, the court's fear of the false accusation distorted their view of the facts. Again, there is some suggestion of this in the statement by Garrow near the start of his speech when he states (following Hale) that charges are easily made, but his approach is balanced and it does not seem that the case can be reduced to this alone.

There are other factors to take into account, and though I am not sure yet that I can weigh the proper significance of each of these, I think a fuller reading of cases such as this would have to take them into account. First, rape was a capital offence at the time, and life was not so cheap that the courts would convict in the absence of clear evidence - and it is precisely the ambiguities and doubts, particularly relating to Masters' conduct in the days following the attack which seems to have given rise to problems for the court. Because it was capital, the law of the time required the woman to resist to the point that her life was in danger (a life for a life), and though attitudes were in the process of changing the courts would not convict where there was apparently consensual sex. This is not to defend these attitudes, but how we should understand the court.

Second, it seems clear that the spoiling of good character was central to the conception of the wrong. Although, notionally, the protection of the law extended to all women, legal commentators viewed the taking of the woman's honour, her good character, as the core of the offence - leading to many lengthy discussions of whether a prostitute or an unchaste woman might be raped. But crucial to this - and at odds with our own understanding of the crime - is that while sexual behaviour was part of the crime, the wrong was not defined by sexual behaviour alone. This was an element in a broader understanding which encompassed social status and character and their place in the social order. Thus, while Masters' apparently good sexual character was probably central to the prosecution being brought in the first place, she fatally undermined her own case when she admitted to sexual conduct which put her character in question.

And this begs the question of why she went with him in the first place when she seems to have had a reasonably protective master, who sought her out when she left and most likely funded the prosecution. It seems clear after all, that the note was not enforceable and she had already told the details of the first attack to her mistress. This is where I think it is hardest to understand what is going on, but I think her conduct must be understood in relation to contemporary understandings of seduction and marriage - and certainly the court seems to think that this might have been characterised as seduction gone wrong. Maybe she did believe the promise of marriage and maybe that was part of a broader social understanding about sex. There is evidence in the eighteenth century of what we might call 'bargaining in the shadow of the law' - sexual conduct on the promise of marriage and men marrying their accusers. Such conduct seems incomprehensible to us, but perhaps makes sense in a world where sex was valued differently, where there was less connection between romantic love and sex, where courtship opportunities were severely limited for domestic servants and so on.

Unfortunately we don't know what happened to the protagonists of the case. The best for Eleanor Masters might be that she was kept in service by her family in spite of her loss of character and was perhaps able to make a good marriage; the worst that she was thrown out because of her loose morals. In spite of his acquittal, the Court was moved to warn Dorrington about his conduct in no uncertain terms:
The seduction of these young women, under pretence of marrying, is not a crime of much less criminality than that which you have been tried for; and you will some time or another get your neck into the halter, if you do not leave off these practices
We do not know if he heeded the warning, though certainly there is no further record of him in the Old Bailey Session papers. We can only hope that he did.

Monday, 6 January 2014

On the passing of the common law of sexual offences

A death notice:

The Sexual Offences (Scotland) Act 2009 (Commencement No 2) Order 2013 www.legislation.gov.uk/ssi/2013/341/made

Peacefully in their sleep, at St Andrew's House in Edinburgh on 16 December 2013, the common law offences of rape, clandestine injury to women, lewd, indecent or libidinous practice or behaviour and sodomy.

[Thanks to James Chalmers]