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.

Wednesday, 12 September 2012

On bigamy

The general rule in most common law jurisdictions is that acts committed outwith the territory are not cognisable by the courts of that country. Thus even in a case such as the apparent assassination of a British family holidaying in France last week, it would be highly unusual if the British authorities were to seek to prosecute the wrongdoers (should they be found) in England. Murder is a crime under French law and when committed in France it should be prosecuted there.

As with any rule of this kind there are exceptions (and the list is a growing one) and one of the most curious exceptions is the crime of bigamy. Under the Offences Against the Person Act 1861 s.57, a British citizen who undergoes a bigamous marriage ceremony anywhere in the world (i.e. knowing or suspecting that they are already married) can be prosecuted for the crime of bigamy in England. An example of the application of this rule is the prosecution in 1901 of the second Earl Russell, older brother of the philosopher Bertrand Russell - a case which is also an early example of the, now popular, Nevada wedding.

The trial of Earl Russell before the House of Lords
Russell had first married in 1890, but seems quickly to have become estranged from his first wife - though no divorce or legal separation was secured. In 1900 he obtained a divorce and entered into a second marriage in Reno, Nevada. His first wife then sued in England for divorce on the grounds of bigamous adultery. On returning to the UK he was charged with bigamy, and as a peer was prosecuted before the House of Lords. He sought to argue that on the basis of the "best legal advice obtainable in Nevada" that he had believed the divorce to be legal. However, the House of Lords, acting on the advice of Lord Halsbury, the Lord Chancellor, declined to recognise the legality of the divorce. He was convicted of bigamy and sentenced to three monhs imprisonment. (You can read a contemporary newspaper account of the trial here).

It is worth asking why it was that bigamy should have been treated as one of the few offences under English criminal law of extraterritorial application in the nineteenth century. (Why prosecute for bigamous marraiges committed abroad when you would not prosecute for murder or other serious crimes?) One possible answer to this might be that most murders committed abroad would crimes under the law where they took place, and the authorities there would be expected to prosecute. By contrast, bigamy would normally come to light for the British authorities when the couple were living in England, or as in this case where the first wife sued for divorce in the English courts, thereby making it a problem for the British authorities to deal with. And it is certainly the case that the Victorians were keen to uphold the respectability of marriage.

The Tichborne Claimant
But I think that there is potentially something else involved here as well, which was an anxiety over mobility and identity, which made the crime of bigamy appear to be a particular problem for the Victorians. The nineteenth century was a period in which it become possible to travel as never before. A young man might go abroad to seek his fortune, but this led to new worries as the apparently respectable young suitor might be someone who was seeking to escape a less than respectable past - and this could spell ruin for a respectable woman. And it could be hard to establish just who a person was in an era where there were no fixed or clear markers of identity - leading to such celebrated cases as the 'Tichborne Claimant', where an Australian butcher was seemingly able to pass himself off as the missing heir to the Tichborne fortune. Thus in the crime of bigamy anxieties over identity, mobility and the sttaus of marriage came together, adn the extraterritorial application of the law can be seen as an attempt to control this in a rapidly changing world.

Of course, the extraterritorial application of the crime is of little importance these days, as the prosecution (and presumably incidence) of the crime of bigamy has declined with the more ready availiability of divorce and the decline of marraige more generally. There are still prosecutions, but these now more often concern attempts to breach immigration law, pointing to a change in the focus of the crime which will have to be the subject of a separate post.

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