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.

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/]

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