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.

Friday, 16 December 2011

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.

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