On the Structures of the Criminal Law

Though coming just too late for Christmas stockings, I would like to recommend The Structures of the Criminal Law, the second book in the Criminalization series from Oxford University Press. (As one of the editors I have to declare an interest). The contributors take on the project of developing new approaches to criminalisation - some of the themes of which have been addressed in this blog. The term 'structures' is used here as a way of grouping together certain themes: how the law is structured (offence/defence, actus reus/mens rea) and whether this can or should inhibit trends in criminalisation; the relation between legal and political structures; and how the law is itself structured by the social and political imagination. This is somewhat broader than the normal understanding of the term in legal thought, and the essays correspondingly range over a wider range of topics than might be expected - but this only makes the collection more interesting and diverse. 

I am not going to identify or comment on individual essays, but will only say that I have learnt a huge amount from reading the papers and discussing the topics with the contributors. So, if you got Amazon vouchers for Christmas, or simply want to give yourself a New Year present, then this might be the book for you. Happy New Year!

[Available directly from the OUP website or from the usual on- and off-line book sellers]

On Foucault and the criminal law

Michel Foucault wrote little directly on the topics of law or criminal law and, given that much of his writing on political theory and power was directed at subverting those approaches which saw questions of sovereignty and constitutionalism as central, this is hardly surprising. Notwithstanding this, his published writings comment frequently on the law, even if this can hardly be said to add up to a theory of law as such. I don't wish to add to this, but while looking over his 1977-8 lectures at the College de France recently I was struck by his comments on the development of the criminal law.

He sees this as comprising three stages. First, the simple prohibition followed by punishment. Second, there is prohibition and punishment, but now accompanied by a series of supervisions, checks and controls - policing individuals before and after the event. The third stage sees the same structure but now the application of policing and punishment will be framed by a series of further questions - about the incidence of crime in particular localities, the cost it presents to the economy, the factors that change its incidence, the costs of different forms of repression, the effectiveness of forms of punishment and so on. His point is that as the basic code is supplemented by these other mechanisms it becomes something else - part of an apparatus of security. This, for him, sees the breach of the norm in the penal code inserted into a series of calculations of probability and cost in the determination of levels of the social acceptability of the conduct.

Looking at it, it is easy to see how this links to the account of the birth of the prison in Discipline and Punish (1977) and, in the third stage, to the developing theme of governmentality. It is, on the face of it, a plausible enough account, suggesting how, while the 'core' of the law remains the same, it is supplemented by other mechanisms which gradually change its character. It is not a complete account, for it seems clear enough that new areas of law develop and the legal form also changes in different ways. The challenge then is to develop a theoretical account of the criminal law which is not narrowly confined to the prohibition, but which also includes the surrounding mechanisms.

On governing through crime

How central is the criminal law to exercise of state power? One way of thinking about the centrality (or not) of the criminal law to the state is the idea of 'governing through crime'. This is a phrase that was coined by the Berkeley criminologist, Jonathan Simon, as a way of describing what he saw as recent trends in the US criminal justice system. It was the title of his book, and is also an excellent blog which documents recent events and discussions, particularly in relation to US penal policy.

For Simon the central idea is that of "the use of crime to promote governance by legitimizing and/or providing content for the exercise of power". This rather abstract formulation is broken down into three elements. First, that crime becomes a strategic issue for government, which is to say that solutions to the problem of crime are seen as primary issues of concern for those in positions of power. Second, crime is used to legitimate interventions that have other motivations. Presenting something as an issue of criminal law, in other words, becomes an easier way of achieving other political ends or programmes. Finally, he suggests that the technologies and discourses of criminal law become more visible features of all kinds of institutions. It seems then as though the criminal law 'colonise' these other institutions, tying it in to education or health or immigration.

These is a useful set of definitions which Simon develops with one eye on his analysis on contemporary developments in the USA, and can explain much about the process of criminalisation. But I wonder if it is an idea which is capable of more general application, as a way of capturing different ways in which criminal law is used as an instrument of governance over time.

What I have in mind here is something like Douglas Hay's analysis of eighteenth century criminal law, which seems like an excellent example of governing through crime, even if it would fail to meet the criteria identified by Simon. Hay argued that criminal law was central to the governance of eighteenth-century in England. First, the law was used to create a series of new offences to bolster and protect the regime of property rights of the ruling class. Second, that same class used the law in a way to legitimise their own authority through a combination of, on the one hand, extreme severity (condemning offenders to death), and on the other, the use of mercy to reprieve all but the most serious offenders. The key point then is that the delicate network of social relations was sustained through the criminal law. This is surely governing through crime, par excellence, even though it clearly lacks any of the features identified by Simon.

What this points to, I think, is a need to generalise the idea of governing through crime, to take it beyond the the temporal and spatial limitations of Simon's usage. It is an idea which requires us to think about different kinds of projects of governing through crime, or of how the criminal law integrates in different ways with different kinds of governmental project. This might mean, as Simon suggests, that it links with education, or for Hay that it is linked to a particular regime of property offences. And it might mean that in some times and places, the criminal law is not central to the state project at all. That might be a bad things for the self image of criminal lawyers and criminologists, but would surely be good for everyone else.

On rioting and mobbing

One of the curiosities of the legal response to the English riots last summer is that no one appears to have been charged with rioting (at least on the basis of my very unscientific survey). There are charges for offences against property, possession of knives, criminal damage, being drunk and disorderly and so on, but very few people seem to have been charged with more traditional public order offences - riot, violent disorder, breach of the peace and affray - which might seem suprising given that rioting is understood as a crime against public order. 

In England the law of offences against public order was modernised with the passing of the Public Order Act 1986, which replaced the common law offences of riot, rout, unlawful assembly and affray, with a range of new statutory offences - riot, violent disorder and affray. But although the crime of riot (s.1) is intended to be used in response to the most serious incidences of public disorder, when there was a serious incident as last summer, it was not used at all. Actually, however, this is not as surprising as might appear at first sight as it is consistent with broad patterns in the use of the criminal law. In 2009/10 for example, of 37,598 recorded public order offences none were for riot and only 861 for violent disorder. This does not mean that some of these incidents could not have been charged as riot, but this is rarely used because it is much easier to obtain prosecutions for the lesser offences - and the fact that, for instance, the property offences were committed in the context of the riots was not something that was lost on the courts when it came to sentencing.

What about the structure of the offence of rioting. The crime in the Public Order Act 1986 is defined as when 12 or more people gather together and use or threaten violence for some common purpose. One odd feature of this is the number 12 - though modern commentators suggest that this is purely indicative of their being a group, rather than a strict requirement. The number seems to hark back to the requirement of the Riot Act 1714, as the point at which the magistrate could read the order requiring the crowd to disperse - at risk of exposing themselves to the use of force. The Act was formally repealed in 1967, though the number 12 lives on. More of a problem though is the requirement to show common purpose. This harks back to the days when mobs were seen as a threat to authority because of the aim they pursued - and violence was a means to an end rather then being an end in itself. As with other areas of law relating to complicity it can be hard to demonstrate a common purpose, particularly when groups form and act spontaneously, making it easier to focus on the actions of individuals.

Another curious feature of the law is that in the time of the Riot Act, riot (and in Scotland the crime of mobbing) were seen as species of crime against the state. The public nature of the crime was not seen in the disturbance of public order, but in the fact the disorder was for the purposes of challenging public authority. Thus a large and drunken crowd causing a disturbance did not commit the crime of mobbing because they had only a private purpose (of pursuing their own ends). It only became mobbing when it acted with violence in defiance of public authority. And if the mob went further, aiming perhaps to break all prisons or challenge all state authority then it would spill over into a form of sedition or treason.

The shift to the modern understanding of riot points to changing perceptions of public order. It is the disturbance that becomes the core of the crime, judged by its size, rather than the nature or aims of the disturbance. Its virtual neglect in the contemporary law points to availability of a range of other crimes that are easier to police and to prove in the courts, as well as the increasing concern with civility and minor disturbances of order.





On riots

There has been much discussion over the last week of the causes of the riots in England last summer. After the initial mud-slinging by outraged politicians whose first reflex is to blame anyone or anything but themselves - feral youth, greed, bad parenting, twitter and new social media, and just plain old wickedness -
it is a relief to read something that is more reflective. (Though this will be little comfort for those unfortunates who came before the courts in the immediate aftermath of the riots and were on the receiving end of some severe sentences).


One of the main questions here concerns the meaning of the riots, or specifically the extent to which they were a form of protest or just criminal behaviour (as if they can only be one or the other). There is something of a paradox here: riots as a form of inarticulate expression. And it is precisely this which leads to the conflict over the meaning of the riots. Is it just looting or something else? Or was it both? What precisely was being protested about? And, if there were clear demands, why riot to express these when there are better ways of bringing these to the attention of the authorities. The answer, of course, is that riots are complex social events: that the trigger may not be fully related to all the actions or motives of all the participants; that people join in for different motives and pursue different ends; and that the actions of groups of people, or people in crowds, have a kind of rationality or logic of their own.

Bread Riot, Stockport 1840s

This is a lesson that is well known to historians of social disorder. Indeed in one of the most celebrated contribution to this history, the social historian E.P Thompson described what he termed 'the moral economy of the English crowd' (read it here). In his studies of 'bread riots' in the eighteenth century - when harvests had failed and poor people were starving - Thompson noted that the crowds did not loot or destroy property indiscrimately, but instead behaved according to certain social norms. They would attack only the property of those they felt were hoarding grain in order to exploit higher prices; enough grain would be taken to meet the immediate needs of those in the crowd; and money was often left representing what was seen as the 'true' market value of the grain. This, then, was a moral economy, based on traditional ways of life, as opposed to capitalist market economy, which was the future.

It is hard to see the English riots of 2011 in these terms - riots, like so many things, ain't what they used to be. The kind of 'moral economy' that held, even starving, communities together is long gone (especially in big cities), as witnessed in the violence that was directed against people's own neighbourhoods. And the rise of the market economy has had many, no doubt, corrosive effects on social relations. It would be a mistake, though, to conclude that these were purely irrational actions - just that we have not yet fully grapsed their meaning. The one consistent factor, though, across time is the response of the authorities. Prison sentences may have replaced transportation, but the fear of disorder persists.

On criminal law in the welfare state

How does the criminal law change with developments in other areas of state activity? At one level, the answer to this sort of question seems obvious - even if it is something that is barely reflected in criminal law books. As the state regulates new areas, or as modes of regulation change to reflect new types of concerns, it is hardly surprising to find that the criminal law changes along with this. Thus, for example, if the state introduces regulations on the number of hours in the working day, or on working conditions, it is not surprising to find that it also introduces new offences and penalties for the breach of these regulations. The provision of new health or injury-related benefits will be accompanied by the creation of new offences for obtaining these benefits in a fraudulent manner. And providing for, say, univeral schooling or vaccination will bring penalties for failure to attend school or to vaccinate your child.

So, one answer to the question of how the criminal law changes in the welfare state is that by increasing the state's capacity for doing good you also increase the capacity for harm - for the breach of the new norms of social activity. The criminal law grows as these new offences are added on to the existing body of crimes - for it does not, of course, become less criminal to murder or steal. These are sometimes referred to as welfare or regulatory offences: not truly criminal, even if it is sometimes conceded that they are necessary to modern social life.

But it is not just a matter of there being more laws, or laws of a different type - a 'welfare' paradigm that supplements the core paradigm of 'autonomy'. There are other changes as well. The character of existing offences might change - different types of activity (dispensing drugs, performing certain services) might be seen as falling within the scope of unnacceptably risky conduct, if performed in certain ways. The scope of omissions liability also changes to reflect the broadening range of duties. Second, new forms of liability develop. The best known example of this is the rise of strict liability - liability without fault, that developed as way of allocating responsibility for the performance of certain activities onto the person or body who was best placed to prevent harm. Thus a food manufacturer, for example, would have liability imposed on them for supplying food which was dangerous to public health, because they (and only they) were best placed to take the necessary precautions. The focus of this kind of liability was on prevention - the avoidance of harm - and the function of the law was less the prosecution of wrongdoers than seeking to make those who held certain positions, or engaged in certain activities, aware of their responsibilities. A new kind of citizenship, if you like. And if this is the case then these changes are not merely adding new norms, but are actually changing the character of the law as well.

Why does this matter? One answer is that it might shed a new light on debates about criminalisation and over-criminalisation. Criminalisation is linked more specifically to political perceptions of the proper function of the state, and the role of the criminal law in pursuing this. And from this perspective attempts to limit the scope of the criminal law must be seen as part of the attack on the welfare state - decriminalisation because sphere of our public responsibilities is being dismantled. (Though of course it has been argued that this large scale privatisation might actually increase the demand for criminal law as marginalised social groups are no longer being integrated into community through welfare provision - but this is a matter for another post). Either way it clearly underscores the point that thinking about the criminal law requires that we also think harder about its relation to the state.

On the codification of criminal procedure

As any student of Scots criminal law quickly learns, the criminal procedure is regulated by the Criminal Procedure (S.) Act 1995. While not quite a code, as it does not pretend to be complete or comprehensive, it does represent a kind of de facto codification of the area, as it brings together and consolidates all the important legislation. It is, however, scarcely a compelling argument for codification, as it is a complex and unwieldy piece of legislation. it is not even easy to know how many sections it contains. There are 309 numbered sections, with 12 schedules, but the actual number is probably double this as many sections have been added. Thus section 271 (on witnesses) is followed by 25 further sections (numbered 271A-Z), which have been inserted by two separate statutes - and the sections themselves are further subdivided into numbered and lettered clauses and sub-clauses. This is a practice which has been followed throughout the Act, to the extent that, in areas where there have been many amendments, some sections with double letters have been inserted. While this is arguably supported by an argument for convenience - at least all relevant provisions can be found in a single place - the overall effect is confusing and difficult to follow.

J.H.A. Macdonald

The 1995 Act is itself a consolidation of an Act of 1975, which itself consolidated the Criminal Procedure (S.) Act 1887 - which was the first such consolidation in Scotland. This Act did not have its origins in any government programme of reform, but was rather the brainchild of J.H.A. Macdonald (later Lord Justice- Clerk Kingsburgh), and author of A Practical Treatise on the Criminal Law of Scotland (1867). The circumstances of its passing are recorded in his memoir, Life Jottings of an Old Edinburgh Citizen (1915) (a book which is almost as dull as its title).

Macdonald was appointed Lord Advocate in 1885 and was shortly after elected to Parliament. While holding this office he brought forward a Bill to amend and simplfy criminal procedure in Scotland. It was, he records, a "bulky Bill" containing some 77 clauses, and he was advised by parliamentary colleagues that a Bill of this length had little chance of passing. That it passed was then due to chance. The Irish Nationalists withdrew from the House in protest at a government bill on Ireland, which was then passed quickly. Macdonald's Bill was then brought forward, and as this was to be followed by a Scottish licensing bill which had opposition support, this also was pushed through in llittle more than an hour and a half.

Such are the origins of codified criminal procedure in Scotland - no grand plan, and enactment without proper review. In certain respects, then, it is surprising that it has worked so well for so long. but after 125 years of amendment and accretion of clauses it might be time to review and simplify the law.

On the decline of violence

There has been much discussion of this topic in the media recently as a result of the publication of the new book by Steven Pinker. The main claim of the book, and the one that has generated most comment, is that violence - in wars, pogroms, slavery, genocides, murders, assaults and executions - has declined over time and that, relatively speaking, we live in a more peaceful and civilised age. The book then discusses the social and psychological reasons why this long term decline has taken place: how the 'better angels' of human nature (empathy, self-control, a moral sense and reason) have slowly exerted control over our inner demons. The claim is backed up with extensive graphs and tables that seek to show that, in proportionate terms, various wars or killings in past ages were more devastating and violent than any of the catastrophic wars or genocides of the twentieth century.

I struggle with the main claim, at least in so far as it relates to modern wars. Pinker may be right with his slightly odd comparative tables, which suggest for example that the First World War is only 16th in the table of historic atrocities (now headed by the An Lushan Revolt and the Mongol Conquests - see p.195). But surely in some way this misses the main point often made about twentieth century wars, which is that it is the peculiar combination of the advance in technological capacity and the genocidal ambition which makes contemporary wars and massacres so devastating. There may be less violence in absolute terms, but that does not tell us anything about the meaning of that violence.

Norbert Elias

But what about the view from criminal law? Here we encounter the more modest claim about the long term decline of criminal violence. Here the argument is more credible and the conclusion less suprising in view of the fact that Pinker is drawing on the work of historians of crime which has pointed to the long term decline in the homicide rates, the decline in the acceptability of public violence, the growth of a more humanitarian sensibility in punishment and so on. Much of this work has been inspired by Norbert Elias' The Civilising Process, and Pinker acknowledges his debt to Elias' work. Elias argued that the civilising process was a combination of two trends. On the one hand, there was the development of a new kind of psychological sensibility, illustrated by the growth of manners which changed the way that people acted in public and private. And on the other hand, the growth of states brought a pressure to towards peace and civility. In the sphere of crime, then, as individuals were learning to curb certain impulses towards violent behaviour, the state was simultaneously conducting campaigns against the carrying of weapons in public, duelling, forms of public brawling, excessive drinking and so on.

While this development is more uneven than a brief summary allows, the general conclusion that is drawn is that there is a more or less steady decline in forms of public and private interpersonal violence and in criminal activity. However, I do wonder if the picture is more complex - and that, even if we accept the broad thesis, it is not clear what this might mean.

One concern here is that it all depends on the definition of violence. These long term historical surveys tend to concentrate on homicide, as the most extreme form of violence - for this is where records are most complete. But violence can take many forms, and it is conceivable that as homicidal violence decreases, other forms of interpersonal violence or abuse might increase. And in the law the definition of violence has been expanding to include various forms of physical and mental abuse, psychic harm, attacks on identity (hate crime again), so that while there may be a long term decline in physical violence, the broadening definition of violence may actually mean that more conduct is criminalised. The outcome of this might even be that, paradoxically, as certain forms of overt violence decline the sense of insecurity, and hence the demand for criminal law, can increase.

This should also lead us to reflect on the role of the criminal law in this process. Has it contributed to the decline in violence? Doubtless criminal lawyers would like to think that it has, but the picture is a bit more ambiguous. Pinker's explanation says little about law directly. Human rights are viewed as having played a role in increasing awareness of certain wrongs and in framing disapproval of, and responses to, atrocities. And there are implicit legal values in the account of the state, of moral reasoning and of empathy. But as in Elias' account the criminal law plays a supporting role rather than being directly instrumental in bringing about social change. This might do violence to many criminal lawyers' understanding of the importance of their discipline, but should also encourage a sense of perspective in thinking about what can, and cannot, be achieved through the criminal law.

On the abduction of women

Although it is sometimes argued that the content of the criminal law is in some way universal, it seems that often a particular combination of circumstances - legal, social, cultural - can lead to criminal practices developing in a particular way. This seems to be the case with the abduction of women in Ireland in the eighteenth and nineteenth centuries.

Here the practice seems to have developed of men more or less systematically abducting women and raping them in order to force them into marriage and obtain the land or money that came with the dowry. What is perhaps even more surprising is that such conduct seems to have been in certain ways tolerated by the religious and legal authorities: forced marriages conducted with the abductee were recognised as having legal standing; magistrates were advised to encourage the parties to marry, notwithstanding the occurrence of rape and violence; prosecutions were abandoned by the families involved; and in all but a few cases (where larger estates or greater sums of money were involved), the penalties on conviction were relatively light. And perhaps most surprising of all, this was a practice that survived at least into the early years of the twentieth century.

Why should this practice have developed in this way in Ireland? This was the question discussed at a seminar I attended yesterday by Maria Luddy of the University of Warwick, at which she presented her research on this topic (which I summarise above). The circumstances are surely complex, but it was suggested that it was a peculiar combination of rigid law on the ownership and transmission of property, the economic motivation of gain, and the fact that chastity was valued so highly that the women abducted frequently had little alternative but to marry. All of which was further supported by inadequate law enforcement and the collusion of the authorities. But given these circumstances it is perhaps also remarkable that the practice does not seem to have developed on such a widespread basis in Scotland - or at least as far as we know - where at least until the end of the eighteenth century legal authority was also comparatively weak in remote areas of the country. Hume cites a case from 1681 (where a royal pardon was granted) and two others from the 1750s. Burnett (writing in 1811) cites a number of additional cases: from 1616 (involving the abduction of a boy), 1673, 1744 and 1750. This suggests that the practice was not unknown in this period, even if it did not become as widespread as in Ireland. It may be that the legal authorities were stronger (at least after the reform of Heritable Jurisdictions in 1747), and laws more strictly enforced, and is almost certainly the case that there were further incidents of abduction which did not come before the courts. However, it is certainly surprising that this practice (which was the subject of legislation in England as late as 1828) did not register more strongly.

This also made me wonder about the legal basis of the crime in Scotland. While in English law the crime seems to have its basis in statute, in Scotland it is a common law crime. Hume is typical in treating forcible abduction and marriage at the end of his chapter on rape. He points out that, while in Roman law it appears that abduction (rather than rape) was the central crime, the Scottish practice seems to have required that the abduction should normally have been accompanied by rape - though he comments that abduction alone would still be criminal. This was based on the discussion in the case of Gray in 1751 where it was held that abduction was still a crime in the absence of force or violence, but not capital. Burnett follows a similar path, placing his discussion of the crime between that of rape and that of other types of abduction or unlawful imprisonment - understood as a usurpation of the authority of the state. (The stealing of achild was even recognised as the separate offence of plagium). And the later authorities follow suit.

The crime, however, has never been abolished, though there is no suggestion of any prosecutions after 1750. Abduction continues to be discussed as a crime in the books, though in the context of election offences and the abduction of children or other forms of unlawful imprisonment. My guess is that otherwise the focus came to be on the rape, as a sexual offence with a weaker link between chastity and property, with abduction being seen as an aggravating circumstance. There are perhaps now parallel offences emerging in the contemporary law relating to people trafficking and forced marriages and it might be interesting to think about these in the context of these older offences and criminal practices.

[Added 28th November: By a strange coincidence, after posting this last week I found out that the Forced Marriage (Protection and Jurisdiction) (S) Act 2011 comes into force today. The legislation criminalises those who breach protection orders andm akes it easier to nullify forced marraiges. It is instructive to look at the justifications for the legislation, for while this ostensibly criminalises the same sort of conduct (forced marriages) as the old common law offence, it is justified (as might be expected) in terms of allowing individuals to express their own individual wishes and consent, rather than seeing women as a form of property who might be carried away.]

On Edinburgh detectives

Writing about the ascent of the detective last week prompted me to go back to the work of James McLevy, one of the original police detectives in Edinburgh, who published his memoirs and reminiscences about his career in several popular books in the 1860s.

Ken Stott as Rebus

Of course, to mention the Edinburgh detective today is to call to mind the character of Inspector Rebus, the creation of Ian Rankin bestselling novels, but there are huge contrasts between the two. Inspector Rebus has the archetypal characteristics of the hero of the contemporary detective story. He is a troubled loner, an alcoholic with a broken marriage and problems with authority. The stories mostly involve murder, dirty dealings below the surface of respectable Edinburgh life, and (in the pattern established by Raymond Chandler) link to some sort of political or financial (and hence moral) corruption.

James McLevy

James McLevy, by contrast, patrols the streets of Edinburgh keeping underworld figures under his beady eye, and cheerfully dispatching them to terms of transportation or imprisonment. However this Edinburgh detective is not pursuing corruption in high places or solving horrible murders, but is mainly concerned with relatively minor crimes - recovering stolen jewellery, prostitutes cheating their clients, messenger boys absconding with their charges. His role is as much to prevent crimes as to solve them, spotting the habitual criminal in a compromising situation or anticipating the criminal plan by a correct interpretation of their behaviour. The role of the detective in the solving of crime relies less on forensic detection than on the detective's knowledge of people and places in Edinburgh. He knows where to go to find malefactors, the fences they deal with, or the places they hide. He is not above placing pressure on suspects to confess, threatening them with the consequences of silence. And when all else fails he walks the streets looking for clues, in the persons dress, demeanour or physiognomy - often relying on his own presence or the sight of the detective to prompt the wrongdoers to panic. And in a surprising number of stories (or at least in his recounting of them) the successful solution relies on chance - a chance encounter with a suspect or the chance discovery of stolen goods. So, for the modern reader there is surprisingly little 'detection' as the tropes of the modern detective story are absent. The stories rather present a fascinating picture of the policing of mid-nineteenth century, of the concerns central to the enforcement of the criminal law in this period, and of the nascent profession of police detective.

McLevy's books included The Sliding Scale of Life (1861), Curiosities of Crime in Edinburgh (1861), and The Disclosures of a Detective (1860). Extracts have been republished, most recently in The Edinburgh Detective, and McLevy Returns (both 2002). Interestingly the character has been used in a series of recent crime novels by David Ashton which place him at the centre of murder investigations involving powerful society figures - closer to Rankin's Edinburgh detective and which seems rather at odds with the original creation.

On corroboration

How much evidence should be needed before a person can be convicted? In systems that have a requirement of corroboration the answer is at least two. This is normally understood as a protection for the accused person, as no one can be convicted on the basis of an unsupported accusation from one other person. If this is the aim of corroboration then this seems right, but since it does not say anything about the weight or quality of evidence, the strength of the protection it provides in practice may not be clear. It would be unjust if a person could be convicted on the basis of two (or more) weak pieces of evidence; but equally if there is one really convincing witness or a strong and compelling piece of evidence it can seem rather arbitrary if a prosecution cannot proceed for want of a second piece of corroborating evidence.

These thoughts are prompted by the imminent publication of the Carloway Review in Scotland. This was an investigation established in the wake of the decision of the Supreme Court of the UK in the case of Cadder. This case held that legislation that allowed suspects to be detained by the police for up to six hours without access to legal advice was contrary to the European Convention on Human Rights - raising the unthinkable prospect that if those detained were in fact to receive legal advice then they might exercise their right to silence making convictions hard to obtain in large numbers of cases. In the light of this (and other) concerns arising from the case Lord Carloway was asked to look at what reforms might be necessary to the criminal justice system in order to ensure that it could still work effectively. And one of the possibilities canvassed was that it might be necessary to remove or relax the corroboration requirement.

It seems highly unlikely that Carloway will recommend abolition, as corroboration and the protection it is thought to offer is central to the self-image of Scottish criminal justice. But I have two observations to make here. It seems clear that the requirement of corroboration can operate as protection against certain types of accusation, but it is not clear that this protection operates across the board. Corroboration has its origins in a pre-modern system (indeed a mediaval system, most historians agree) where criminal actions were brought by private individuals. Specifically it pre-dates the establishment of modern police forces in the nineteenth century and the systematic prosecution of individuals for minor 'police' offences. In modern practice then the requirement of corroboration in many criminal prosecution means no more than that police officers work in pairs. Corroboration is less a protection than a formality. If this is the reality in minor offences, corrboration can operate in a different way in sexual offences. Here the problem is often that an accusation of rape might boil down to the word of the complainer against that of the alleged attacker, but in the absence of corroboration the case will never come before a jury. In this type of case then corroborationan is a protection, but of the wrong kind, as the high threshold might prevent justice from being done.
If this is right then there may be grounds for rethinking the place and importance of corroboration.

[Update 18th November: I'm happy to say that my prediction above was entirely wrong, as the Carloway Review has wrongfooted everyone and recommended the abolition of corroboration. This, of  course, will still have to be implemented by the Scottish Government, and there is likely to be resistance, but the gauntlet has been thrown down.]

On the ascent of the detective

The police detective occupies an uneasy place in crime fiction - and especially the crime fiction of the 'Golden Age' of the Edwardian or inter-war country house murder. For every story in which the police detective is competent and solves the mystery, there is another in which the bumbling and incompetent lower class police detective plays the foil to the part-time, gentlemanly, sleuth - be it Sherlock Holmes, Lord Peter Wimsey or Hercules Poirot. The detecting of crime was often presented as the pursuit of the leisured and highly educated amateur rather than as a professional career. Much has been written about this in the context of the rise of detective fiction as a genre, but now for the first time we have a book that systematically explore the origins of the police detective, letting us see more of this, often shadowy, figure.

This book, The Ascent of the Detective. Police Sleuths in Victorian and Edwardian England, by Haia Shpayer-Makov, explores different dimensions of the emergence of the detective. It begins with the identification of the role of the deteective within the newly established police forces of the nineteenth century. She points out that there was initial resistance to the idea as corrupt thief-takers and agents provocateurs had tarnished the image of plainclothes police in the eighteenth century. Notwithstanding this the first detective department was established in the Metropolitan Police in 1842, with other forces following by the 1850s. She then looks at the recruitment of detectives and their organisation within particular offices within forces that allowed them developing a particular ethos and specialised knowledge as the century progressed. Lastly she explores the mythology that grew up around institutions, such as Scotland Yard, that was cultivated through close relationships with the developing tabloid press which relied on police sources for information about crimes, and in return would assist in the solving of crimes by publishing calls for information and writing favourable reports about individual detectives. By the end of the century, then, she concludes that detectives had established a place for themselves both within the police organisation and the national imagination.
This is a wonderfully rich historical account, and there is something of interest to the historian of crime on nearly every page, but it is worth reflecting on the broader significance of the police detective. Is their emergence a development that changed the criminal law in any way? One important point that Shpayer-Makov makes here concerns the changing function of the criminal law in this period. This was a period, as she points out, which saw massive growth in wealth and consumption alongside endemic poverty, fear of crime and outbursts of political violence. police detectives played an important role in investigating groups or individuals beofre they committed crimes as well as managing the social tensions that were produced. The image of the detective was also central to legitimating the idea of the police and legal authority. Second, it is worth noting that this developed as a state function. This was not the realm of the private eye, and even those amateurs who populated the pages of crime fiction were in the end conceived as adjuncts to the power of the state rather than as alternatives. Lastly it may point to a role in a developing kind of surveillance, as the presence of the detective began to shape the social behaviour so that the reach of the law extended well beyond the collars of those fingered by police constables on the beat. Overall this points to a move from seeing the role of criminal law as being exclusively that of punishment to the detection, investiagtion and prevention of crime. This is something that is often overlooked by accounts of the law which focus only on the justification of punishment, but this book reminds us that our understanding of the function of the law must be broader.
[Full details of the book, and a sample chapter, can be found on the Oxford University Press website]

On sectarianism as hate crime

As I write the Scottish SNP government is trying to push through the Offensive Behaviour at Football and Threatening Communications (S.) Bill. It is hard to know where to start with a piece of legislation like this. As the title of the Bill suggests it is a response to particular incidents that occurred during the last football season - on the one hand the singing of offensive songs or chants at or around football matches and on the other, the posting of threats and sending threatening material to high profile individuals connected with a certain football club. While this might seem like an extraordinary reaction to a few isolated incidents it makes a bit more sense in the Scottish context where there is a concern about sectarian crimes.

What is sectarianism? Often described as 'Scotland's shame', there is little agreement over its precise nature or qualities. It has its origins in the divide between religious communities - Catholic and Protestant - and has particularly manifested itself around the support for Glasgow's two main football teams, Celtic (Catholic) and Rangers (Protestant) - hence the concerns addressed by the legislation. Beyond that, though, it is usually now agreed that it is not primarily about religion, but reflects other social and political divisions, though there is disagreement about what these are, and of the significance to be attached to certain cultural symbols such as the flags, songs and chants of football supporters.

This context points to the special difficulties in determining the political need for such a piece of legislation. But rather than adding to the discussion of these issues I want to confine myself to some comments on the content. Here it is hard to avoid the conclusion that the section 1 offence (offensive behaviour) is just extremely poorly drafted. The offence is defined as engaging in behaviour likely to incite public disorder - which would be virtually indistinguishable from the existing common law crime of breach of the peace, given that 'incite' must be understood in this context as meaning 'cause'. 'Behaviour' is then defined in s.1(2) as variously expressing hatred of, or stirring up hatred against, an individual or group on the basis of religion, colour, race, nationality, ethnic origins, sexual orientation, transgender identity or disability, or behaviour motivated by such hatred, or behaviour that is threatening or offensive. A person found guilty of this on indictment would be potentially liable for a sentence of up to 5 years imprisonment.

Even if we leave aside the last two categories here (threatening and offensive behaviour), which seem to have been added only out of a failure of the drafter's nerve and have no clear connection with problem the legislation is aimed at, there are some significant difficulties here. First is why the offence should have been defined in terms of the incitement of public disorder. The problem here is presumably that such conduct in the context in which it occurs (at or near football grounds, or in public places where matches are being shown) is already inflammatory - that is, to shout sectarian slogans at a football match would already be 'inciting' public disorder - which is why there is the concern in the first place. There seems to be no need for this first limb of the offence, unless inciting was specifically understood as urging others to commit a crime. However, since the definition is fulfilled by the behaviour itself there is no need for this.

But what about the definition of 'behaviour'. This is defined in terms of hatred of groups or individuals defined in terms of religion etc. The problem here is that while every kind of conceivable group identity is listed (in spite of the fact that most of these, including religious hatred, are already defined as aggravations in law), the key term 'hatred' is undefined. This may not be thought to be a problem, as there are already other existing aggravations in law defined in terms of 'hatred', but it is surely a greater problem in this context where the nature of the problem (sectarianism) is itself so contested. The traditional songs and chants may be offensive, but do they express hatred? Or is the hatred expressed in the song or does it depend on the motivation of the person singing it - in which case even more ostensibly 'neutral' songs might become more problematic.

The legislation has been condemned by the political opponents of the SNP on the grounds that it is unworkable. This seems to be based on the suggestion that the police and prosecution would not be able to use the offence, because it is too vague and overlaps with existing offences. However, there is a more important sense in which legislation might be unworkable, and that is that it might simply be incomprehensible to those citizens whose conduct it is supposed to regulate. This seems to be the most important sense here. If politicians are unable to agree on the type of conduct that is covered by the legislation, and lawyers even struggle to understand its content, it seems like a serious abdication of responsibility on the part of the legislator, and an invitation to injustice to even attempt to enforce a law such as this.

I don't mean to suggest for a moment here that there is not a serious problem or even that it does not require some sort of special response. I do, however, seriously doubt whether this particular Bill, which is poorly drafted and adds little to the already existing offences in Scots law, is the appropriate solution.

On paradigmatic crimes

What is the crime that best exemplifies the criminal law? This might seem like a bit of an odd question, but there is fashion in legal theorising to seek to identify the typical or paradigmatic crime, in the sense of that which best illustrates all the normative features of the criminal law - that is to say that it should be capable of operating as a model for developing a proper understanding of the criminal law as a body of rules. There are a range of candidates for this, ranging from blackmail to murder to treason. I don't want to go into the reasons why these particular crimes have been put forward, or to nominate a candidate of my own, largely because I think that the exercise itself is rather odd. Why? Well it seems to rest on two key assumptions, neither of which seem to me to be particularly warranted.

The first is the idea that there is or can be a single normative structure to the criminal law. If this were true it would imply that this structure of liability, of defining the scope of the wrong, and relation to defences would apply to all individual crimes  And second is the idea that there are 'core' offences, whose meaning and scope is so settled that one can stand for the whole - with the consequence that all others might be measured against it and found wanting. By contrast my understanding of the criminal law is that its meaning and function as a body of rules is constantly in flux, and that as it, to a great extent, represents the accretion of crimes legislated or created over time it is hard to identify a single principle or structure. Equally, there are different patterns of liability in the development of different crimes such that there may be no readily identifiable set of generalisable features.

That said I wonder if there is something which can be redeemed from this exercise, some sense in which it might be useful to think about paradigmatic crimes. My thought here is that just as different historical periods had distinctive ways of thinking about the nature of the criminal law they might also have had distinctive or paradigmatic crimes. This might be so in the sense that certain crimes were enforced more regularly in certain periods, or the defence of certain interests was treated as being of paramount importance. Thus, offences against property made up much of the 'Bloody Code' in England in the eighteenth century and have been described by Douglas Hay as being central to the operation and even the structuring of the law in that period. Second, certain crimes or types of crime only emerge at particular historical points, and might reflect changes (paradigm shifts?) in the nature of the  law. One key example here is the law of attempts which, notwithstanding older roots, emerges with a new subjective focus in the early nineteenth century as law and police shift towards the prevention of crime. And finally particular crimes might be paradigmatic of the fears or obsessions of a certain period, as arguably the fear or terrorism and incivility are impacting on the crimianl law today. Exploring the idea of paradigmatic crimes in these kinds of senses offers opportunities for opening up to analysis historical patterns and shifts in the use and function of the criminal law, which can help us better understand the place we are in at the moment. And who knows, this might also lead to a paradigm shift in ways of thinking about criminal law.

On hate crime

The trial and conviction of Vincent Tabak for the murder of Joanna Yeates has prompted calls for new legislation to protect women. Writing in the Guardian, Julie Bindel, has argued that the case demonstrates the need for a crime of incitement to sexual hatred. The specific context for this is that Tabak was found to have visited a number of websites containing what has come to be known as 'extreme pornography' - images depicting the torture or maiming of women - both immediately before and following his attack on Joanna Yeates - which might suggest that there is some connection between the two.

While the existence of such websites raises legitimate concerns about their social impact, there are grounds to be cautious about resort to criminal law. First it is not clear how this proposed new offence would interact with existing legislation criminalising the possession of 'extreme pornography' (in 2008 in England and Wales, and in 2010 in Scotland) - which was itself a response to another high profile crime of violence against a female victim. Should it replace it? Or is it to be additional? But more importantly it is not clear what this might add. The existing legislation already criminalises possession, broadly defined, of these images, in contrast to prior law on obscenity which criminalised the production, distribution or sale of such images. The reason for the shift from production or sale to possession was the recognition that with the advent of the internet it may be well nigh impossible to identify, let alone prosecute, the producers of images such as these. And as Internet Service Providers were resistant to the idea that the distributors of such images might be prosecuted, as they claim to be unable to control the flow or content of images, it was the possession (and presumably also consumption) of the images that was criminalised (in line with similar legislation on child pornography). However, it is worth noting that the crime has rarely been prosecuted, since it is only likely to come to light when a person' computer is being searched for other reasons.

This brings us to the idea of a new offence. The difference in the crime being proposed is that it would criminalise incitement to sexual hatred. While there can be little doubt that many (if not most) of the websites complained of express a kind of sexual hatred or particularly distasteful objectification of the female victims (even allowing for the existence of some legitimate S/M sites), there may be problems around the idea of incitement. This is normally understood, in legal terms, as saying or doing something which is intended to lead another person to perform a criminal act. Now one issue here is that the extensive survey of evidence commissioned by the Home Office and Scottish Government in advance of the recent legislation found no, or at best inconclusive, evidence of any causal link between such images and sexual violence. Fine, but it may then be replied that the purpose of the proposed offence would not require any causal link of this sort since it is the image itself that is the incitement. But the problem here would then be the question of who the offence was aimed at. In terms of incitement this would surely require that it be the producer, or at least the distributor, who was being targeted - though this would then encounter the same problems as the extreme pornography offence. If it is the possessor or consumer - which seems to be the tenor of Bindel's argument - it is not clear that they are the inciter (rather than being incited). And given this vagueness it may be that the use of the existing possession offence would be less problematic. But more importantly, since (as in the case of Tabak) the person incited has already committed another more serious crime, it is hard to see what the new offence would add, except in symbolic terms.

There are significant problems, then, with attempting to criminalise conduct in this area - without even getting to issues of freedom of expression and censorship. However, the argument also prompts some reflections on the rise of legislation criminalising hatred, and what these might tell us about the changing character of the criminal law. First of all, what is distinctive about this is that it reflects the rise of identity as something to be protected by the criminal law. Put bluntly, if the criminal law has traditionally been concerned with the protection of physical objects or attributes (the body, property etc), there now seems to be a shift towards including such incorporeal things as identity within the scope of the protection of the law - either in its own right or as a factor which aggravates the crime. (See for example the Offences (Aggravation by Prejudice Scotland Act 2009). Second, these developments put motive, which has traditionally been considered irrelevant to intention, at the heart of the definition. But this can cause problems as it can be hard to know whether it is the motive of the aggressor or the experience of the victim that is most important.

What is the significance of these new kinds of offences? It is hard to say, but it might be linked to the rise of concerns about respect and civility - though there are still grounds for concern about use of the criminal law. The criminalisation of hatred might reflect a concern with civility, as we seek to promote tolerance of the identity of others, but equally aggravated offences might aggravate the the differences and difficulties in this area.

On Guy Aldred



Guy Aldred in 1912



While writing a recent post on sedition I came across the fascinating story of Guy Aldred, the last man to be prosecuted for sedition in Scotland in 1921. Aside from the inherent interest in his life, I was intrigued to learn that the conviction in Scotland was in fact that second time that he had been prosecuted for sedition. His story also demonstrates the way that the criminal law can be used in a repressive way against marginal groups and individuals, and that he continued to fight for justice is tribute to his spirit.



Aldred was born in London on 5th November 1886 - hence his name (after Guy Fawkes). He was raised by his mother and grandfather, both of whom were involved in radical political movements. In his early life he was involved in various forms of radical Christian movements, but from 1906 onwards became involved with Anarchist and socialist groups, regularly writing for their newspapers and speaking at public meetings. His first prosecution for sedition came in 1909 when he took over the publication of a journal called the Indian Sociologist.
This was an Indian nationalist newspaper published in London. The editor, Shyamji Krishnavarma, fled to Paris in 1907, fearing persecution for the beliefs published in the paper, but the paper continued to be printed in England. The first printer, Arthur Horsley, was prosecuted for sedition, but in spite of a warning from the Lord Chief Justice (Alverstone) in this trial that further prosecutions would follow if the paper continued to be published, the printing was then taken over by Aldred, who also contrbuted to the paper. His prosecution followed in 1909. What was particularly notable about this was that the prosecution focused on a particularly striking passage in the paper in which Aldred compared political assassination and judicial execution. He was convicted and sentenced to 12 months hard labour.

On his release Aldred moved to Glasgow, where he spent most of the rest of his life, becoming involved in varous leftist and anarchist groups. He campaigned against the war and was prosecuted as a conscientious objector, serving various periods of hard labour. At the end of the war he was released and immediately returned to a life of political activism - and it was his publication in 1921 of an article in the Red Commune, a newspaper of the Glasgow Communist Group, on the 'Sinn Fein tactic' (standing for Parliament but not swearing the oath or taking your seat) that led to his prosecution (along with two others) for sedition.

There is little information readily available about this prosecution or whether there was any discussion of the nature of sedition, as the case was not reported.  A footnote in Gordon's Criminal Law sets out the terms of the indictment as the publication of words "calculated to excite popular disaffection, commotion, and violence and resistance to lawful authority". Aldred was convicted of this offence and sentenced to twelve months imprisonment.

It appears that Aldred had two further encounter with Scots criminal law, as he was prosecuted twice in 1924. The first was for obstructing a public highway, while holding a public meeting. Aldred sought to argue that there was a right to hold public meetings, but the Court held that this public right was subject to the limitation that it not obstruct the public highway. The second was for holding an illegal public meeting on Glasgow Green. Here Aldred's attempt to argue that the bye-laws regulating such meetings were ultra vires was met with little success.

He spent the rest of life in Glasgow, speaking at meetings, publishing and offering legal advice to working people. He died on Thursday 17th October 1963.

On grids

What do these things have in common? Bricks, writing tablets, maps, ledgers for keeping track of financial transactions, the invention of the cardboard box, and the punch cards used by early computers. According to art historian Hannah Higgins these are all examples of 'grids', basic forms of technology that have organised human communities at different points in history and which developed in such a way as to shape how we see and understand the world.

Thus, the invention of the moulded brick (in 9000 BCE)enabled the building of strong permanent buildings, on a pattern of a staggered grid, and the development of towns and cities. Writing tablets, as compressed bricks, enabled standardised forms of writing, pictograms or symbols organised in horizontal or vertical lines or grids. The development of maps was based on grids projected over space to allow its representation. Ledgers, developing from simple abacuses or tallies, allowed forms of accounting to develop, tracking financial transactions or the strengths and weaknesses of the human character over a grid of entries. The cardboard box, perhaps most surprisingly and inventively, is seen to link the revolution in the packaging and transport of goods (starting with Kellogg's cornflakes!), to the development of the container ship and on-demand ordering, the skyscraper and modernist attempts to order and control space and cubist painting. And last of all, the computer punchcard gives rise to the matrix, the computer network that is the internet as a new form of virtual organisation.

This is all very interesting but, you might ask, what has it got to do with the criminal law? Well one of the surprising things about the book are the many references to law. Some are obvious: the stone tablets on which early laws were inscribed, or the move from an oral to a textual culture brought about by printing. Some are more oblique: the use of the Court of Exchequer to illustrate a tally board, or the reform of US shipping laws that made possible the use of closed containers. But more than anything else the argument is suggestive, challenging us to think about different ways or 'grids' in which the law is organised - and to see connections with technical, social and cultural revolutions.

We can see this happening in a number of ways. First, it can shape our language. To talk, for instance, of the trial as a process of calling an accused person to account, is already to appeal to the ledger, to pre-existing traditions of moral accounting. And in criminal law we often talk about concepts as the building blocks and how these fit together in certain patterns or grids to establish criminal liability. Second, it might suggest ways of thinking about the architecture of the criminal law. In modern legal thought this tends to be seen as a hierarchical structure: the general part sets out the foundations, which then support and shape the rules of particular crimes. Communication passes from the general to the particular and back again. What are crimnal codes but grids, attempts to impose order on legal chaos? But laws have been, and sometime even now, are ordered in different ways, according to different 'grids' or logics, and the form we use where lawyers seek to place individuated crimes into different, self-contained, boxes is not necessarily the only, or best way of thinking about law. (And the computer network, or hyperlinks, may challenge these ways of reading and organising law, as it possible to read and experience the law differently. And lastly, more than anything else, these grids are in different ways attempts to order the world, to render social space more readable and accountable and hence governable. But, as Higgins also concludes, grids have their own textures, individuating features and capacities for creative enrichment. They constructs a relationship between order and disorder, and one of the challenges for legal thought must be to examine how this process process comes about in the grid of the modern law.

[The Grid Book by Hannah B Higgins was published by MIT Press in 2009, and is available in bookshops, on library shelves, on the internet - and possibly other kinds of grid too...]

On shoplifting

I read today about the Global Retail Theft Barometer 2011 compiled by the Centre for Retail Research. Based on a survey of major retailers in 43 countries, it estimates that the total global rate of 'shrinkage' (defined as inventory loss caused by theft or administrative error) was a massive $119 billion, of which $93 billion coud be attributed to theft either by employees or shoplifters.

The Report makes fascinating reading, not only for the highly specialised language (shrinkage, enhancing loss prevention etc), but because of what this tells us about responses to theft in this sector. Where we might expect to see criminal law as the primary response, it quickly becomes clear that forms of target hardening (use of security tags etc) and the management of inventories are seen as much more cost effective and efficient ways of dealing with the problem. This raises a number of questions about the use of criminal law and the criminalisation of shoplifting. Is the criminal law an appropriate response or is it conduct that might be better regulated by 'taxing' minor offenders? Is it a serious moral wrong in a world where consumer goods are in such wide circulation and of such little lasting value? Is it, perhaps, as is sometimes suggested (not least by the offenders themselves!), a victimless crime. I suspect that few retailers would agree with this - and given the scale of the problem revaled by the Report it is perhaps hard to suggest that this is an insignificant phenomenon. Of course, it might be the case that criminal law is not used because retailers just don't see it as being particularly effective - too slow, sentences too short, and not preventing serial offenders from repeating their conduct. But it might also be that the criminal law has been superseded in this area, as other modes of prevention are used, or the cost of theft is just seen as a side effect to the otherwise high profits. This is an open question, and it will be interesting to see if the book on Shopping and Crime to be published next year can unpick these kinds of issues.

It is worth noting, however, that shoplifting is a relatively recent invention. There has, of course, always been pilfering, but shoplifting as we know it emerged only with the development of large department stores in the late nineteenth century. These displayed goods in a different way, and encouraged the public to mingle with and touch the goods on display. Not surprisingly, an environment set up to seduce consumers into buying led not a few to steal. This, in turn, had an impact on the law of theft as cases addressed the nature of the relationship between store and consumer and the limits of permissible conduct within this new kind of space. Equally, the growth of supermarkets in the 1960s and 1970s led to a series of legal cases involving label switching and the question of when goods on a shelf ceased to be in the possession of the store.

The scale and scope of theft, then, is linked in interesting ways to types of shop, the kinds of goods which are sold there, and the shaping of permissible conduct within those spaces. This brings us back to the Global Retail Theft Barometer. What the Report documents, I would suggest, is precisely this issue of shaping conduct - of employees and putative shoplifters. But what is most striking about the language in which it does this is precisely that considerations of moral wrong or outrage have been replaced by a calculus of security.

On sedition and leasing-making

Amid all the talk of over-criminalisation and legislative excess I want to note a recent rare example of decriminalisation. Section 51 of the Criminal Justice and Licensing (S.) Act abolishes the common law crimes of sedition and leasing-making. This follows the Coroners and Justice Act 2009 s.73 which abolished sedition, seditious libel, defamatory libel and obscene libel in the rest of the UK. Good news, no doubt, but what do these terms mean?

The Martyrs' Monument in Edinburgh's Calton Graveyard,
commemorating the radicals prosecuted for sedition in 1793.

Sedition, according to Alison's Criminal Law (1832) was the crime of using language that was calculated to incite the subjects of the realm "to attempt the alteration of the law and existing institutions by violent and illegal methods". While some writers distinguished between real and verbal sedition - the former being where the words were put into action - this was not of any great practical importance. It has a long and particularly chequered history in Scots law, as the crime was used to suppress various forms of political opposition. The most famous use (or abuse) of the law was in series of prosecutions of radicals (including Thomas Muir) in the 1790s. Prosecutions of political dissent continued through the 1820s and there was also a prosecution of a group of Chartists in 1848 (Jas. Cumming, John Grant & ors (1848) Shaw 17), and of the publishers of a communist newspaper in Glasgow  in 1921.

The definition of leasing making is more obscure, the term being a corruption of the phrase lese majeste, which was a form of treason. This included offences against the dignity of the sovereign or the uttering of lies or libels upon the personal character of the sovereign, his court, or his family (Burnett). This, it was suggested before the Justice Committee, had not been prosecuted since 1715, though the cases they seem to be referring to here (Graham and Stewart) appear equally to have been prosecutions for slanderous and seditious speeches against the monarch.

Both crimes were defined in extremely vague terms, overlapping with each other, with forms of treason, and with lesser crimes against public order such as mobbing. Both raise the question of the scope of legitimate political comment or satire and the relation between the motive of the writer or publisher and the nature of the supposed incitement. They gave wide discretion to the prosecution. And both crimes sat uncomfortably with modern understandings of political institutions - the chapter of Gordon's Criminal Law on sedition, for example, makes uncomfortable reading as he plainly struggles to recast the understanding the offence into more modern terms.

In the light of this it would, then, be good to report a happy ending, the legislature decriminalising forms of political speech and opposition. But the picture is not quite so clear. While these offences were clearly anachronistic and their abolition desirable, there are a raft of more modern offences which cover similar activities. Notable amongst these are the Terrorism Acts (2000 and 2006) where terrorism is defined in terms of the use or threat of action designed to influence the government or intimidate the public, and specific offences criminalise various forms of participation in, or support of, terrorist activities or groups. Sadly the evidence suggests that these new offences may be open to the same kind of criticisms - over broad definitions, extensive police and prosecutorial discretion, disproportionate use against certain groups or sections of the community - as were directed at those crimes they were supposed to replace. There is little room, then, for self-congratulation.

[Since posting this it has been pointed out to me that the penal reaction to the unfortunate individuals who posted incitements to riot on Facebook last summer seems to exactly mirror the use of the offence of sedition. Further evidence, then, in support of my conclusions.]

On civility

Securing civility may be an aim of the criminal law, but this still leaves open the question of what civility means, and just how it might be secured by the criminal law. If our concern is a decline in good manners or etiquette, then use of the criminal law would seem to be a vastly disproportionate response. On the other hand, there is criminological evidence that suggests that breakdowns of civility - rudeness or lack of consideration for others - can contribute to the incidence of crime as they create a physical or psychological environment where people begin to think that criminal conduct is permissible. And this is where the question of civility also links to contemporary political debates, where the breakdown of manners is presented as part of a longer narrative of national decline, with recent Conservative initiatives(http://news.bbc.co.uk/1/hi/uk_politics/6581193.stm) only the latest attempt to address the absence of civility (remember New Labour's Respect Agenda?).

In this context then it is very interesting to read the research report of the Young Foundation published today. This reports the findings of research carried out determine the extent of civility in our society, and contrary to the commonly held view that civility is in decline, they present a much more nuanced picture. On the positive side they argue that the research (carried out in social locations from the inner city to rural towns) reveals evidence of high levels of civil behaviour and that people felt that they were treated with resepct and consideration by their neighbours. At the same time they note the disproportionate influence of certain incidents or flashpoints on psychological wellbeing or the general perception of the incidence of incivility - in other words one rude or confrontational incident can obscure our perception of underlying patterns of civility. On the negative side they go on to identify certain long-term trends that are placing civility under stress - notably high density living, mobile populations and the increased use of technologies.

Where does this leave us in thinking about civility and criminal law? One of the most important conclusions, I think, is that the researchers urge caution in the use of the kinds of sanctions or punitive responses which have dominated the policy responses in this area. In its place they recommend the use of 'soft' sanctions, from respectful policing to the design of public space. Criminal law then can secure civility, but its overuse would carry a disproportionate cost.

[The report, and an earlier one called 'Civility Lost and Found' can be read at http://www.youngfoundation.org/]

On Feindstrafrecht

In earlier posts I have raised the question of the function of the criminal law in the particular context of theories of criminalisation. Here I suggested that many of the so-called theories of criminalisation focused on the idea that criminal law was centrally about the protection of certain rights or interests against wrongdoing, but that such theories often had little to say about the function of criminal law beyond that. Now it may be that there is no function of criminal law beyond the protection of these goods, but that seems unlikely and it is necessary to think about alternative views.
One such alternative view is that of the German legal theorist, Gunther Jakobs. Jakobs view is that the function of criminal law is to allow individuals to engage with each other in complex modern societies, specifically where mechanisms of trust no longer operate so as to form the foundation for social interaction. Individuals must however trust that the validity of the norms of the criminal law is generally recognised, and presumably that breaches of the norms will be enforced. Punishment is thus paradigmatically directed at communicating with citizens about the breach of norm and need to cultivate law-abidingness.

An Enemy of the State?

Up to this point this theory is not too unconventional, indeed it appears to have parallels with views which take community and communication to be central to the process of determining liability and punishment. And like many functionalist accounts it says little or nothing about the content of the law, in place of the generalised social trust in the validity of the norms. However, Jakobs views have been controversial because he goes beyond this to suggest that the law orients itself differently when dealing with those who do not accept general norms and seek merely to exploit the trust of others, specifically those who offend persistently or engage in organised crime or are involved in terrorist groups. Such offenders are viewed as 'enemies' (hence 'feindstrafrecht' or enemy criminal law) who have demonstrated by their conduct that they cannot guarantee to conduct themselves as loyal citizens. Punishment for such offenders then takes the form of 'instrumental communication', directed at the actor who has excluded themselves from the legal community, and indeed he suggests that there are identifiable trends in German law towards an exclusionary, instrumental, 'enemy' criminal law of this sort.

Such views have, as you might expect, been controversial. It offends against the liberal idea that all citizens must be treated with equal concern and respect and that rights and procedural protections should apply equally. Moreover, the central concept of the 'enemy' is vague and ill defined, and seems to open the door to the possibility that individuals or groups might be ostracised or excluded in law because their lifestyle or conduct is not accepted or tolerated by other members of the community.

So where does this leave us? Is there anything of value to be taken from this account? Well, as a starting point I think it is necessary to distinguish between the descriptive and normative elements of the theory. As a matter of fact certain groups or communities are excluded and there has been a turn in the criminal law to highly punitive measures directed at such groups. It is surely important to recognise these features of the law and to ground any normative theorising on an understanding, not of an ideal law, but the law as it operates in modern society. This does not entail acceptance of the conclusion that it is justified to treat such 'enemies' differently. Equally, I think that there is something in the placing of trust in norms at the centre of the theory that is worth thinking about. While it appears to be empty of content (trust in the validity of any norms irrespective of content?) it surely offers possibilities for a richer account of the criminal law. We trust people in different ways because of their roles in society and the kind of relations that we have with them. In these terms some of the goods or interests protected by the criminal law can be reconceived as breaches in certain kinds of trust, whether this be at an individual level or in relation to the negligent carrying out of certain specialised activities. This might offer a fruitful avenue for thinking about criminal law in the modern state.