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.