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, 28 March 2013

On the limits of complicity

A problem that arises in discussions of complicity is the liability of the position of a person who supplies goods or tools to another in the knowledge, or with the expectation that they will use them to commit a crime. Traditionally this has been discussed  in terms of a hypothetical situation such as the shopkeeper who sells a knife or poison to a person that they know or strongly suspect is going to use the item to murder someone.

And less criminal law?
The normal way of addressing questions such as this is to try and use the conceptual tools of the criminal law. Thus it would normally proceed by asking whether, in the event of the murder taking place, the shopkeeper could be said to have caused the death in some way (i.e. is there a causal link). For many commentators this would be enough, as it would be argued that the action of killing was too remote from the sale, or that the actions of the buyer/murderer as an autonomous agent broke the causal chain. In case this was not enough, we might then ask about the degree of knowledge or the mental state of the seller: did they know about the intent of the buyer or did they foresee the outcome as possible, likely or probable? And in most systems the rule seems to be that there should be some degree of intent (i.e. that the seller should intend the outcome) and that merely being reckless as to the outcome would not be enough to give rise to criminal liability. And why? This is because those who are pursuing an ordinary course of business should not be brought within the scope of the criminal law.

All this seems fine in the hypothetical case, but these kind of cases are not merely hypothetical, as there are an increasing number of situations which pose this kind of problem. This might be the question where a pharmacist provides drugs to be used in the suicide of another person. It has arisen in cases where a a supplier of illegal drugs drugs has been charged with the homicide of a persons who have consumed them and died (not because of an impurity in the drug, but simply where the victim has suffered an adverse reaction. And on a bigger scale it has arisen in the case of the supplier of chemicals that were used in the gas chambers of Auschwitz. And it arises in the case of the arms dealer who sells guns or weapons that are likely to be used to prosecute massacres or illegal wars.

Now each of these cases raises slightly different issues, and have been dealt with differently by national and international courts, but what they share in common is the question of the limits of complicity. This, however, should not be seen wholly in terms of criminal law concepts, but was is clear from the hypothetical example given above is that these concepts are supplemented in practice by an understanding of the normal operation of business or the market. That is to say, the considerations of knowledge or foresight are limited in a commercial context by the understanding that there is a kind of 'veil of ignorance' imposed over these sorts of transaction: a seller is under no duty to inquire how the arms or chemicals are likely to be used. This seems disingenuous at best to me (and others) - as at least some of these kinds of transactions (chemicals, arms) seem far from normal. I would have no difficulty in suggesting that there is some form of complicity  in this situation - and that if the criminal law does not recognize this then the problem lies with the law rather than our understanding of complicity, as some have argued.

However, important as this kind of argument is, I think that a really interesting and neglected issue here is the question of how this distinction between law and the market arises and operates. At what point does this kind of market blindness become a limit to the criminal law? And how is the understanding of 'normal' business practice constructed?

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