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.

Thursday, 27 September 2012

On burglary

There have been eyebrows raised in response to the comments of Judge Michael Pert this week. While sentencing two men found guilty of burglary, he said that burglars who chose to burgle homes where the owner legally possessed a gun should accept the risk of being shot. In his exact words:
If you burgle a house in the country where the householder owns a legally held shotgun, that is the chance you take. You cannot come to court and ask for a lighter sentence because of it.
Joshua O'Gorman and Daniel Mansell,
who were shot in the course of burglary
Further comment then came this morning from Lord Chief Justice Judge, who responded to questions on the case by suggesting that burglary of a home was more than a crime against property, but was also a crime against the person:
It's not a matter of being sentimental. When you are at home you want to feel safe. You are entitled to feel safe and secure.
Sir Edward Coke:
"For a man's house is his castle..."
At one level this seems intuitively right - even without having to dress it up in the language of the Englishman's home being his castle, and so on. There might be two reasons for this. The first is present in LCJ Judge's statement, but might be spelled out more fully. This is that there is a difference between being in public and private spaces such as the home. When we venture out into public, we perhaps adopt a certain front or persona, we are ready for encounters or engagement with strangers. This might also be true of certain private spaces where we meet others. However, in our home, either on our own or with intimates, we generally do not feel the need to put on that front, unless perhaps we are inviting guests into our space - but even then there might be a different kind of negotiation, as we deal differently with friends or acquaintances and strangers. It is not just a matter of safety or security. One might feel safe in public, and a lot of feminist reserach has documented how for many women and children the home is not a place of safety. It is more that the uninvited entry of a stranger is a particular kind of transgression or threat. Thus at one level this might have nothing to do with property at all. It would be just as much of a threat to find an intruder in a hotel bedroom as in a home that you home. While a burglary of other kinds of buildings or dwellings houses would not be so threatening in the absence of people living there.

The second reason is also hinted at in the Lord Chief Justice's remarks, and is that a burglary might feel like a crime against the person. This might be because while we own or possess different kinds of property, we have a different kind of relation with them. I own some property which is in a sense 'disposable'. If certain kinds of property are taken they are easy to replace, and the lack of police interest, say, in tracking stolen bikes or even cars reflects this to some extent. But there are other kinds of property that might have less intrinsic value, but which have value to me because of their sentimental meaning or because I have worked on them or identify with the property in a certain way, and it would hurt me more to lose or have this stolen. And of course in our culture, our homes  represent a particular kind of investment. They are not just a structure in which to eat or sleep, but a particular place in which we ccan decorate and embellish as an expression of our identity - and to which we return at night to recover our sense of self. And it not then surprising that one often finds the victim of burglary reporting the sense of violation that they feel or the loss of a sense of security - the hurt goes far beyond the value of any property taken. So burglary, as with certain kinds of theft, might seem like a kind of invasion of the person.

But we should be careful where we go with this. Should a crime be treated as more serious becuase of the value of the property to the victim? Probably not, though it might at least be arguable that in some cases it might be worse to steal something (even of no value) that you know to be of value to the victim because, say, you want to hurt them.

But what about self defence?  The danger of going down this road of seeing threats to property as threats against the person is that we extend the scope of self defence, making it easier to see any intrusion or taking as a threat to self which would justify the use of (possbily fatal) force. It may be that, as LCJ Judge says, homeowners dealing with intruders should not necessarily have to hang around to find out the precise degree of threat offered by that intruder, But at the same time, many burglaries are routine and much of the property stolen is that which is 'disposable'  - not easily identifed and quickly convertible into cash (electronics etc). So we should be wary about defining our sense of burglary in terms of what might be an extreme or special case, and we should be especially wary about analogies which make it too easy to extend the scope of self defence.

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