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.

Tuesday, 27 March 2012

On standing your ground

The killing of Trayvon Martin in Florida has rightly been attracting a lot of attention. While much of the discussion has been about the alleged racism of his assailant, George Zimmerman, and that of the Florida police in not arresting and charging the man, as well as the broader social and cultural significance of the case, it is worth reflecting on the place of the criminal law in this. Underlying the incident is Florida's unusually broad law on self defence, based on the so-called 'stand your ground' principle. To what extent might this law, with its broad definition of the circumstances in which it is permissible to attack an assailant, have contributed to the killing?

The law on self defence is contained in s.776.012 and 013 of the Florida Statutes. The relevant section reads:
A person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013
S.776.013 then goes on set out that a person is presumed to have a reasonable fear of imminent peril (and is thus permitted to use lethal force) where this was used against an unlawful entrant of a building or vehicle, where the person believed that an unlawful entry was occuring or about to occur. It goes on to state that a person attacked in a place where they have a right to be has no duty to retreat and can meet force with force, and that the person attempting to unlawfully enter another person's building is presumed to be doing so with intent to use force or violence.

The first thing that is notable is the feature that is remarked on by most commentators, namely that there is no duty to retreat, or that one can stand one's ground, whether attacked in the street, on one's home, or in one's car (carjacking). In some circumstances this might seem admirable. If I am attacked in my own home by an intruder, why should I have to run away (or not have the option of running away), as is required by the law of self defence in many jurisdictions, before I can defend myself, my family or my property? This seems to rely on the idea of the home as a particular kind of place of safety  - and is linked by some commentators to the idea that 'the Englishman's home is has castle' (the common law is, of course, English in origin). This seems less defensible in the context of some public interactions, though. It may be better for the law to encourage people not to stand and fight when attacked (so-called 'make my day laws, after the Clint Eastwood character in the movie Sudden Impact) , both for their own safety and the safety of the public more general. And to conceive of standing one's ground as a virtue requires a particular sense of honour or character which is neither universally shared nor admired. It is also surely a very masculine virtue, encouraging a particular sort of reaction.

Go ahead, make my day...
However, there is more. An even more striking feature of the law here is that there are a lot of presumptions at work: that the initial victim is presumed to have a reasonable fear; and that the unlawful entrant is presumed to intend violence. These then structure the other rules which are framed in more familiar terms of reasonable belief: reasonable belief that a forcible entry was occurring; or reasonable belief that force was necessary to prevent death or violence. But we might ask what a reasonable belief would be under these circumstances. If the law is presuming violent intent, even where it is absent in fact, then it is surely almost always reasonable to believe that lethal violence is necessary in response. And moreover to legislate a presumption of reasonable fear on the part of the initial victim may create a situation where the person who wishes agressively to defend their property may do so with impunity - the question will then become that of where the defence of that property begins and ends, and that is once more framed in terms of reasonable belief.

All of which brings us back to the original question of whether a law framed in these terms might have contributed to the killing. The answer, at least to my mind, is that even a restrictive reading of the statute allows enormous leeway to the initial victim - to the extent that the fact of their victimhood is presumed rather than established in fact. This is not just a question of the right to stand one's ground, as that surely could be framed in such a way that it was not surrounded by such broad presumptions. More than this, however, there is evidence from other cases that not only is Florida's law framed in broad terms but that it is also interpreted in a very broad way by the judiciary, allowing the pursuit and stabbing of intruders. Taken altogether these have produced a lethal combination which seems permit far more than self defence.

Friday, 23 March 2012

On William Roughead

One of my favourite writers on criminal law is William Roughead. Roughhead (1870-1952) was a Writer to the Signet in Edinburgh who became a leading commentator on criminal trials, contributing to the elevation of the disreputable genre of ‘true crime’ to new levels of intellectual and social respectability. He was the editor of ten volumes in the Notable British Trials series, which published the transcripts of contemporary and historical criminal trials together with an editorial introduction. This was a major publishing phenomenon during the first half of the twentieth century, leading to a number of spin-off ventures from other publishers trying to cash in on this market. But Roughead's main contribution was in a series of essays (75 in total over 28 years), most of which were initially published in the Juridical Review, on Scottish criminal trials. These were then republished in volumes of collected essays which attracted admirers as diverse as Henry James, John Buchan and FD Roosevelt, though his style is can be clumsy and rather contrived - at least to my mind.

Roughead claimed to have attended most of the significant murder trials in Edinburgh between 1889 and 1949, earning the distinctive privilege of his own seat in the well of the court. He wrote long and fascinating essays on the trials he had himself witnessed, as well as on a number of historical incidents and personalities. He was fascinated with the character of those, such as Madeleine Smith, accused of murder, and liked to speculate about their motives and demeanour. In general terms, though, he was unsympathetic to those accused of crimes, writing cheerfully about executions and murderers getting their comeuppance - leading the playwright James Bridie to describe him as ‘the greatest living exponent of the Calvinist attitude to evil’. And this perhaps is where he is of greatest interest to the contemporary reader, for he opens up a perspective on the protestant attitude to guilt and sin that is largely lost to the contemporary reader, even though it is this attitude which has shaped the development of ideas about mens rea in Scotland and similar jurisdictions.

Roughead also played a significant role in the exoneration of Oscar Slater - a case where his literary reputation for forensic analysis was used in an actual case. Slater was convicted of murder and robbery in 1909. An elderly woman, Mrs Marion Gilchrist, was assaulted and killed in her own home in the West End of Glasgow. Slater, a German Jew with a less than respectable lifestyle who lived nearby, became a suspect when he tried to dispose of some jewellery shortly after the incident - though it was later established that it was not stolen. He was convicted on the basis of flawed identification evidence and sentenced to life imprisonment. Roughead attended the original trial in 1909, and first published a volume on the trial in 1910, in which he was critical of the police investigation and the use of identification evidence. He published three later editions of that work as new evidence came to light, and was instrumental (with others such as Sir Arthur Conan Doyle) in the campaign to free Slater. He finally gave evidence at the hearing before the newly established Scottish court of criminal appeal in 1928 at which Slater was eventually freed. Ironically, given Roughead's interest in character, it was then the judgement of the Appeal Court that established the rule in Scots criminal procedure that evidence of bad character was irrelevant to guilt.

[A selection of Roughead's essays was recently republished by the NYRB press. There is also a fairly recent biography, by Richard Whittington-Egan, but since Roughead didn't do much except attend trials, and rarely even left Edinburgh, it is a fairly limited source of entertainment]

Monday, 19 March 2012

On Foucault, markets and crime

Shortly after posting on the new crimes of market abuse last week, I was reading Michel Foucault's lectures on the Birth of Biopolitics (from 1978-9), and he has some very interesting things to say about markets and crime - and this in turn might contribute to our understanding of current trends in the criminalisation of market conduct.

Foucault's main claim (in Lecture 2) is that while markets have always been regulated, the basis of that regulation undergoes a fundamental transformation at the end of the eighteenth century. The early modern market, he suggests, is a site of justice (or jurisdiction). The aim of the regulation of the market was to secure both some sort of distributive justice, so price is regulated to ensure that goods are accessible to the poor, and to minimise forms of exploitation. Criminal law was involved primarily to prevent theft or fraud - protecting the buyer against fraud as to the nature or quality of the objects. Distributive justice was secured through mechanisms which set a just price - one which sought to balance the needs of merchants with the needs and resources of purchasers. Crucially this meant that the seller was not unrestricted in setting a price or even where and when they might sell certain goods, but had to do this subject to law (or these forms of external regulation).

The modern market by contrast takes a different form. Central to the modern market is the pricing mechanism in terms of which price is regarded as a natural mechanism which has its own regularity and 'truth', and distributive justice is regarded as something that will follow from the market. The aim of regulation is thus that of preserving the operation of the market (ensuring that the pricing mechanism operates properly). This might be done either by intervening in the market to prevent exploitation or deception, or by correcting the distributive effects of the market where these create imbalance or inequality. The important idea is that the market has its own internal truth, and that law is not independent or external to the market, but must follow that truth.

What might this tell us about the criminalisation of 'market abuse'? I think that there are three main points to be made here. The first is that by drawing attention to the changed nature of the market and regulation, Foucault makes clear how we now understand regulation as something that is essentially internal to the market. A key assumption of modern thought, from Adam Smith on, is that markets are self-regulating. Of course we might question the extent of this, but political responses to the market are essentially ranged along a spectrum from minimum to more extensive intervention that takes for granted these ideas about market operation. Second, Foucault points to an important shift in the potential use of the criminal law. While there might appear to be continuity in the use of the criminal law to prevent fraud or exploitation, he makes it clear that the underlying rationale of these offences changes. In the early modern period it is connected to preserving the market as a place of social justice, but in the modern period this regulation is to preserve the regularity of market operation. Finally, this might also help us to see how new forms of 'market abuse' emerge. These are not independent forms of wrongdoing, which might take place in any other area of social life, but are intrinsically linked to market operation - or maintaining a particular kind of trust in the market. The important factor here is less that we have to trust the person with whom we are performing a transaction (this hardly matters in an age of electronic transactions where something can be bought and resold several times in a short periods of time). What matters is that there is trust in the market as an institution that has its own kind of truth. The consequences of undermining this belief are far more serious than any individual wrong.

Tuesday, 13 March 2012

On criminalising violence against women

It was announced last week, on International Women's Day, that the UK is to introduce new laws against sexual harassment. (The press report says UK, which is the signatory to the Convention, though in the context presumably this means England and Wales. Scotland would have to introduce separate offences if necessary). This initiative is linked to the signing by the UK of the Council of Europe Convention on Violence Against Women. This provoked a certain degree of comment, as to whether this would criminalise wolf whistling or sexist remarks, and in view of this it is worth taking a look at what the Convention actually says as a means of assessing its significance.

The Convention basically sets out a number very broad aims. These include such statements as: "to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence"; and to "design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence". These broad statements are then followed up with requirements to introduce a series of much more specific initiatives in areas ranging from education, victim support and prevention and treatment services. And it is here (in Articles 33-42) that the requirements on criminalisation of certain conduct are outlined. These Articles require a commitment from signatories to criminalise a range of conduct, from sexual and physical violence, to stalking, forced marriage, or female genital mutilation and forced sterilisation. And it is here that we find the provision on sexual harassment (Article 40):
Parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction".
Does this amount to a requirement to criminalise wolf whistles or sexist remarks? It is hard to know as the provision is vague. On the one hand, the explanatory notes on the provision are keen to stress that this does not require a criminal response, and some 'other legal sanction' may be appropriate. And even if criminal law were used it is not clear whether the scope of the provision is so broad. Moreover, the explanatory notes seem to envisage that sexual harassment will occur in a relation where the parties know each other and the man is exploiting a power imbalance. But the wording of the provision is broader than this ("any form of unwanted ... conduct"). It is also interesting to note that the conduct is defined in terms of purpose or effect - in other words where it is experienced as hostile, humiliating and degrading, even if not intended as such. It is clear that any new provision would have to address these ambiguities.

But, more broadly, is a criminal response to this conduct desirable? It has been argued that this kind of conduct is 'gateway' conduct, contributing to the cultural acceptability of other forms of violence and abuse. This might be so, but it does not necessarily follow from this that it is appropriate to criminalise the sexist conduct, either in its own right or as a 'proxy' for the harm that might follow. It is surely necessary to be clear that if something is to be criminalised it must not only be wrong (and with some direct risk of harm), but that the criminal law should be the most appropriate form of response. And we might be concerned that this Convention (and others like it) is encouraging a rush to criminalisation. Although the Convention is at least clear that criminalisation should be seen as part of a spectrum of social, cultural and legal responses to violence against women.

What are we to make of this? In general terms this is surely an important recognition of the structural significance of gendered violence and the need for a co-ordinated and comprehensive approach to that violence. It also recognises the wide range of different forms violence can take. But there are a couple of striking features of this that I want to note. The first is the language of the Convention and notes which underline the progress that has been made by campaigners in this area. This can be seen in the Preamble, which contains statements such as: violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men and to the prevention of the full advancement of women;
and the need to recognise the structural nature of violence against women as gender-based violence, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men. It is also interesting that the Convention has, for example, an explicit provision on "awareness raising" (Art.13), and calls for explicit state support for women's groups working in this area.
The second thing that I find really striking is the broad definition of violence (Art.3): 
[Violence] shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
I have commented in an earlier post on how the definition of violence has expanded, and this is surely confirmation of that. Economic harm may be damaging to women, but I am not convinced that it should be understood as a form of violence. It is easier to understand the idea of psychological violence, which is well documented in research on domestic abuse, but the definition of psychological violence in Art. 33 as "seriously impairing a person’s psychological integrity" is once again rather vague. Overall, then, the broad definition of violence reflects a certain understanding which has developed of forms of gendered violence, but it throws up important challenges for criminalisation in this area.

Thursday, 8 March 2012

On punishing photography

Most of my posts so far have been about aspects of criminal law or doctrine that have caught my eye, as promised. Something different, though, is this new blog called Punishing Photography. This documents a fascinating new collaboration between artists and criminologists, and is based in the Scottish Centre for Crime and Justice Research at the University of Glasgow (see here for more info).

What is particularly interesting about this project is that rather focusing on images of crime or criminals, prisons or punishment, it is studying criminologists. This is surely important. Crime as an object is rather taken for granted - and most of my posts have been directed at challenging some of the taken for granted assumptions that underlie legal definitions of crime. But this project is broader. There have been many studies of the intellectual processes by which a set of ideas, or a discipline, is formed - what counts as knowledge, what are the methods associated with the discipline, how does it promote itself, and so on - but there are few (if any) studies of the rather more mundane, day-to-day, processes through which this is done. And what is particularly interesting about this is that it is not other academics but an artist who is doing the observing and documenting. What happens when an artist studies criminologists studying punishment? It is a rare opportunity to develop a different kind of perspective on the work that we do.

This is a fascinating idea and I am really intrigued to see how it develops during the period of the residency.

Monday, 5 March 2012

On market abuse

The term market abuse, has recently joined a range of other kinds of abusive behaviour that have been criminalised, from child abuse to domestic abuse to forms of abusive conduct. Abuse is a convenient buzzword for capturing the sense that something is wrong - use differs from abuse - but the content of the idea of abuse varies wildly from context to context.

So what about market abuse? The term is taken from an EU Directive - the Market Abuse Directive (MAD)(2003/6/EC, since you ask) and is repeated in a recent proposal for a directive which aims to established a comprehensive framework to tackle various forms of insider dealing and practices of market manipulation. Insider dealing is defined in Article 3 of the draft directive as the use of inside information to acquire or dispose of financial instruments to which that information relates. Market manipulation (in Article 4) is defined as a range of possible actions from giving false or misleading signals about the price or value of a financial instrument, securing its price at an abnormal or artificial level, deceptions about price of finanical instruments, or the dissemination of false or misleading information for the purpose of profit.

This is an interesting development and, you might think, necessary, especially in the context of the recent financial crisis which has brought to light various forms of shady practice and market manipulation. It is justified in terms of the need for criminal sanctions and uniform enforcement practices across the EU, as markets now cross borders. And it also seems clear that as markets grow, and as financial instruments become more complex, then the risks associated with trading them become ever greater. But this still begs a numbers of questions.

First of all, it is still not clear why criminalistion is appropriate here rather than other forms of regulation - and, as the proposal makes clear, proportionality is an important principle in EU law. It is undoubtedly the case that the potential risks (and thus the potential for social harm) are enormous, but that in itself cannot justify criminalisation in the absence of clearly identifiable criminal wrongs. One difficulty here is that it may be very hard to distinguish between market manipulation and normal practice, and even more to prove that such practices have been carried out intentionally. The proposal also makes a number of assumptions (that criminalisation sends a strong message of disapproval, which may makes sanctions more effective) about the effectiveness of criminal sanctions which may not be justified. But even if this were true of all criminal sanctions, it is still worth asking why market conduct is being criminalised now. 

There is a strong symbolic shift here in the criminalisation of market practices. For many years the market has been seen as beyond the reach of the criminal law - in an realm founded on contract, contract was seen as the most appropriate form of remedy in all but the most egregious cases of deception or falshood. And it was the integrity of the contract that established the market. But in this shift we see that it is market integrity itself which is seen as the value that is to be protected at all costs. There must be trust in the market (between traders) and there must be public trust (as non-participants) that the market is operatiing fairly. This suggests an important shift in the object of criminalisation. As the market becomes more central in the neo-liberal global economy, we see a shift towards the use of criminal law to regulate the market - and it is also significant that the source of this criminal law is the EU. If we want to understand neo-liberal criminal law it is no doubt important that we we focus on this shift.

[I am very grateful to Elena Dede for bringing the MAD to my attention and discussing it with me]