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.

Sunday, 30 October 2011

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.

Tuesday, 25 October 2011

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.

Sunday, 23 October 2011

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...]

Tuesday, 18 October 2011

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.

Thursday, 13 October 2011

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.]

Monday, 10 October 2011

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/]

Friday, 7 October 2011

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.

Tuesday, 4 October 2011

On Empire

Much has been made recently of the global turn of criminal law. This is seen in the rise of international criminal law, the emergence of bodies of transational criminal law, and even in new kinds of global scholarship. However, while there is undoubtedly much that is new and significant about these developments, a focus on their novelty can obscure a longer history. And if we are properly to understand the emergence and significance of the new developments it is essential that we engage with the history of empire and imperialism.

These thoughts are prompted by a new book on the history of the law of habeas corpus, by Paul Halliday of the University of Virginia. Habeas Corpus, as all first year law students know, is the writ which was used to prevent the unlawful of detention of prisoners, as the judges of King's courts could order the prisoner to be brought before them so that the grounds of detention could be examined. As Halliday points out, this understanding of the use of the writ gives rise to a kind of legal narcissism as Anglo-American judges and jurists congratulated themselves on the use of the writ as a triumph of liberty over tyranny. In place of the conventional hagiography, Halliday studies the actual use of the writ to show how the writ was not animated initially by ideas about liberty at all, but was rather a means by which the king's courts could consolidate their power and oversight over other courts and jurisdictions. However, for me the most interesting part of the argument is in the claim that the history of habeas corpus, in some ways the most quintessentially English legal procedure, is a history of empire and cannot be understood without considering the imperial dimension. This story, Haliday shows, is not quite so glorious, as use of the writ did not extend to slaves in many British colonies, where weak local courts were unable to exercise any real supervisory authority over colonial governors, and where emergency powers allowed the writ to be avoided and many thousands were detained in different places during national liberation struggles. All this is fascinating and an important corrective to simplistic claims often made on the part of the writ. But more important still is the importance of recognising the imperial context as essential to an understanding of the history of the criminal law. The language of the law, its conceptual structure, and the even the definition of particular crimes have been exported from England, as the mother country over many centuries, and used more or less consciously as tools of colonial governance. The study of this history can throw new light on the functions of the criminal law, and on what are often taken to be the achievements of criminal theory. And, of course, are a central if we are to understand the most recent 'global turn'.

[The book is called Habeas Corpus. From England to Empire and was published by Harvard University Press in 2010. It is, or should be, available from all good bookstores.]