On when the law is an ass

I have copied in the text of a story reported on the BBC Scotland News website yesterday.

A homeless man who was found sitting outside a bank with a bright orange toy gun has been convicted of having an "imitation weapon". Scott Park, 33, was handcuffed and led away by police after being found with the toy gun outside the Royal Bank of Scotland in Stirling in June last year.
Initially he was charged with a breach of the peace but prosecutors changed it to one of breaching the Firearms Act.
During the sheriff-only trial at Stirling Sheriff Court, CCTV footage was shown of Park huddled on the steps of the bank, which was closed at the time, as passers-by occasionally dropped coins in his plastic cup.
Police were alerted after a teenage girl saw the bright orange gun fall out of his pocket. She said she asked him what he was going to do with it and that he had replied he was going to use it if people refused to give him money. She said she was not sure if he was joking.
Depute fiscal Lindsey Brooks, prosecuting, argued a toy gun could fall foul of the Firearms Act if it "looked like a gun". Alistair Burleigh, defending, said the item his client had was "fluorescent bright orange, entirely constructed of plastic, and quite obviously simply a toy". A firearms expert told the court the gun was perfectly legal and it was bright orange because legislation says that non-imitation toy guns have to be a bright colour to distinguish them from real guns.
But Sheriff O'Carroll said it had the appearance of a firearm. He said children had "lawful excuse" for possessing such things - for playing cowboys and Indians. He said the case raised "a major public policy issue".

While there may have been other things going on that we are not aware of from this short report, on the face of it this looks ridiculous. It hardly bears comment, but I will make one or two points.

First, it appears that he was charged under the Firearms Act 1968 s.19, the text of which is as follows:

A person commits an offence if, without lawful authority or reasonable excuse (the proof whereof lies on him) he has with him in a public place

(a) a loaded shot gun,
(b) an air weapon (whether loaded or not),
(c) any other firearm (whether loaded or not) together with ammunition suitable for use in that firearm, or
(d) an imitation firearm

The obvious point concerns the definition of an imitation firearm. It seems fairly clear that everything that looks like a gun or is gun shaped should not be treated in law as an imitation firearm. This, indeed, is the point made by the defence expert when arguing that toy guns were made in such colours precisely so they could not be mistaken for real firearms. This not only creates an inconsistency in the law (what is legal for one purpose is illegal for another), but raises the possibility that that the law is dramatically extended here as any possessor of a toy gun in a public place (except children - though we will come to that in a moment) is committing an offence.

Second, what is a reasonable excuse? It is obviously not enough of an excuse that something is a toy, is flourescent orange, and that no reasonable person over the age of 5 would mistake it for the real thing. It is an excuse, it appears, to be a child playing "cowboys and Indians". This is extraordinary. Presumably a child under the age of 12 could not be charged with an offence anyway (unless the Sheriff has forgotten the recent change in the law); and in my experience children over age of 12 have usually grown out of playing with toy guns. But it is also an extraordinary failure of judicial training. Is this Indians from South Asia, or Native Americans? His language is out of date and out of touch.

Third, while it is easy to criticisze the Sheriff here, we should not forget that it takes more than a judge to produce this outcome. Both police and prosecution must bear some responsibility for this coming to court. It is often argued by the police in such cases that the charge is merely a pretext to offer help or assistance to a person, or to take them out of a situation where they are causing distress to the public. That may have been the case here - and we do not know - but it is hardly an excuse for abusing the law in this way.

Finally, the Sheriff apparently states that there is a major public policy issue. For once I agree with him. There is a major issue here, but it is not the one he is referring to. The real issues here is the over-criminalization of the homeless, and the misuse of the criminal law. And responsibility for that lies with the police, the prosecution and the courts.

On "Act of Terror"

It is well known that the Terrorism Acts in the UK and elsewhere have dramatically extended criminal law and police powers, with powers to stop and search  being widely used against the certain ethnic communities and disproportionate use of public order powers. One of these powers is the power under s.58A of the Terrorism Act 2000 (added by s.76 of the Counter-Terrorism Act 2008). Under this section it is an offence to elicit or attempt to elicit information about a police constable or to publish or communicate such information. The meaning of the wording of the section is obscure, to say the least, but it has been widely interpreted as permitting the police to stop members of the public filming police officers. Official Metropolitan Police guidelines now point out that:

It would ordinarily be unlawful to use section 58A to arrest people photographing police officers in the course of normal policing activities, including protests because there would not normally be grounds for suspecting that the photographs were being taken to provide assistance to a terrorist. An arrest would only be lawful if an arresting officer had a reasonable suspicion that the photographs were being taken in order to provide practical assistance to a person committing or preparing an act of terrorism.

However, this entertaining short video suggests that these guidelines are not always being followed in practice:

There are a number of reasons for concern about this. First, is that camera phones are increasingly being used to provide evidence of police misconduct and hold the police to account for exceeding their powers. The police should not be capable of hiding behind legislation like this as a means of evading responsibility for their actions. The police are public officers acting in a public capacity and that means that they must visibly adhere to certain standards of conduct. And this is one way of ensuring that they do so.

Second, this seems like an extraordinarily poorly drafted section. Presumably (and I am guessing here) the aim of the section is to prevent the passing on or publishing of specific information (name, address etc) about identifiable members of the police or armed forces that might lead to them becoming the object of a terrorist attack. I have in mind something like publishing personal details about police officers engaged in specific counter-terrorism activities or something like that. If this is the case, there must surely be a way of drafting legislation in such a way as to make this clear - and to rule out the possibility of looser interpretations. If the police are to blame for interpreting the section more broadly than this, some responsibility must also lie with Parliament for making it so easy.

Finally, in the words of the Clash - Know Your Rights! It is not an offence to film a police officer, and if they do attempt to stop you doing this, you should know what to do.

On 'An American Tragedy' and the criminal law

An American Tragedy was a hugely popular novel by Theodore Dreiser, first published in 1925. It is probably not much read now (though it was filmed at least twice), but it has a fascinating connection with the criminal law. In the first place, which is not so unusual, the novel was based on an actual case. More unusually the novel then became the basis for discussion of the criminal law.

The plot of the novel concerned an ambitious young man, Clyde Griffiths. Clyde gets his working class lover, Roberta Alden, pregnant but he does not want to marry her, because he hopes for a marriage that would advance his career. When he is unable to obtain an abortion for Roberta, he plots to kill her. Telling her that they should run away to get married, they travel to the Adirondack Mountains in upstate New York. Clyde takes Roberta out in a small boat on a secluded lake, planning to capsize the boat and swim to shore - knowing that she could not swim. While in the boat he got cold feet about the plan and realised that he could not follow through on it. However, there is an accident and the boat in fact capsizes; Clyde swims to shore and Roberta is drowned. When Roberta's body is found, Clyde is arrested and charged with capital murder - and eventually executed.

The plot of the novel was based on an actual criminal case that had taken place in 1906 when an ambitious young man called Chester Gillette (note the same initials) had drowned his pregnant lover, Grace Brown, in Big Moose Lake. As in the novel,  it appears that Gillette had convinced Brown to come on the trip with the promise of marriage. He had taken her out on the lake, but had beaten her with a tennis racket and thrown her overboard - and so when her body was found there was clear evidence of foul play. Gillette was captured soon after, having made little attempt to escape, and was tried and convicted of her murder, and executed by electric chair at Auburn Prison, New York.

In spite of the similarities, there are clear differences between the two cases - perhaps reflecting the fact that a novelist has greater opportunity and licence in constructing the interior mental states of his protagonists. The biggest difference in the fictional version is the fact that the reader knows that Clyde has decided not to kill Roberta. In spite of having taken steps towards the completion of his plot, he has reached the point where he has gone back on his original intention. The double irony in the novel is it is at precisely this point that the accident takes place which results in the boat capsizing, and that then Clyde is tried and prosecuted on the basis of evidence of his original plot - and the appearance it gave of an intention to kill, even though he no longer possessed that intention.

The novel sold well (over 50,000 copies by the end of 1926), in spite of critical reviews, and in order to boost publicity yet further the publishers came up with idea of a prize essay contest: the topic "Was Clyde Griffiths guilty of murder in the first degree?". So far so ordinary, but what makes this unusual is that the contest was won by a law professor, Albert Levitt, of Washington and Lee University, who had previously written to Dreiser praising the construction of his 'beautiful legal problem'. He was an unusual character, trained in theology and law, and linked to a circle of progressive academics, and he had recently written a series of papers on the question of mens rea in the criminal law.

Albert Levitt

Levitt's prizewinning essay seems to have received only limited circulation.  It is, nonetheless, a fascinating document. It is in four parts, each of which addresses a different dimension of Griffith's guilt. The first part addresses his legal guilt. On this Levitt is clear: this could not be murder in the first degree. He had no intention to kill at the time the accident took place, and was not under any duty to rescue Roberta. The second part then addressed the question of whether he was guilty under Christian ethics. Here he was equally clear that Clyde was guilty: he had evil in his heart and this may have contributed unconsciously to his actions. He accepted the opportunity offered by the accident, and made no effort to rescue Roberta. Third, he asked whether the jury were right to convict. Here, he praised the formulation of the legal issues in the trial in the novel, and argued that it was reasonable for a jury on the evidence not to believe his claim that he had a change of heart - and to convict on that basis. In other words, in the absence of clear evidence of this change, they were entitled to convict. Finally, and most interestingly, he addressed the question of the extent to which society or the state was responsible. Here he was highly critical of state policies on sex education, which he argued taught outmoded christian doctrine, rather than teaching responsibility about sex, and he argued that the availability of birth control or abortion on demand would have prevented the murder. The state then was to blame for all three deaths.

It might seem like cheating for a law professor to enter and win the contest - he at least seems to have some advantage over the ordinary reader. But the essay offers much more than just an analysis of legal doctrine. It is a fascinating snapshot of progressive views about criminal law from the early part of the century and as such it deserves to be better known.

[The essay was rediscovered and reprinted in 1991 in a journal called Papers on Language and Literature with a short introduction by Philip Gerber. Unfortunately this is not freely available online. Those with access to a university library might want to check it out, though.]

On Thatcher's law

Brixton 1981

The announcement of the death of Margaret Thatcher yesterday has got me thinking about her legacy in the area of criminal law. There have been any number of assessments of her impact in different areas, but there is little about the criminal law, although this was an area of marked conflict throughout the 1980s. Indeed, when I first came to the study of the criminal law in the 1980s,  the criminal law was highly politicised. Indeed there was a clear dissonance between how the criminal law was being used by the state and its presentation in the the law books and cases.

Toxteth 1981

On the one hand it was clear that the police and the law were being used as enforcers for a range of controversial social and economic policies. There was Northern Ireland, where we were repeatedly told that it was not a war that was being fought but just crime. There were repeated confrontations between police and trade unions as secondary picketing was criminalised and the police were were used (as at Wapping) almost as private security for Rupert Murdoch's News International. During the miners' strike of 1984-5 the criminal law was used in a range of different ways from the all out confrontations between police and miners at Orgreave to the less visible, but also highly controversial, stopping of miners travelling to pickets and forcing them to return home. There were any number of urban riots - from Brixton to Tottenham to Toxteth - where the flashpoint was poor relations between the police who were perceived as authoritarian and racist and local black and ethnic communities. And popular protest against from the introduction of Cruise missiles to the poll tax were policed in confrontational and militaristic style. The major crimes of the period were all related to public order and the issues of policing and race were central to public debate, and it seems no exaggeration to say that the dominant image of the period was of the police crouching behind riot shields and wielding truncheons as they confronted different groups of protestors.

The Battle of Orgreave 1984

Strangely little of this conflict was reflected in criminal law books or cases. The judiciary were largely fairly supine - defending the established order and rarely challenging the government  - especially on issues of trade unions and civil liberties. The legal literature of the time was largely concerned (it seemed to me) with the promotion of ideas of subjective mens rea and the internal logic of crimes such as murder and impossible attempts. This seemed to have some sort of affinity with ideology of individual responsibility being pushed by Thatcher, and to led critical scholars such as Alan Norrie to point out how these concepts masked the political use of the criminal law, making it easier to present the law as abstract, logical and neutral. There were some legal reforms in the period - the passing of the Police and Criminal Evidence Act 1984, changing the law on arrest and detention and the treatment of suspects in police custody, was controversial at the time, but has borne the passage of time fairly. Other changes to the substantive law were not inspired by Thatcher, but were largely the completion of projects begun in the 1970s (e.g. the Criminal Attempts Act 1981).

Wapping 1986

But how much of a legacy did this leave? At one level it appears to be surprisingly little. There have been riots since, but not as regularly, and however bad relations are between police and certain ethnic minority groups they have never broken down as routinely or as systematically.There have been fewer confrontations around industrial disputes - perhaps because the decline in power of the unions has reduced the potential for confrontation - and perhaps police tactics have also changed. The judiciary are now more inclined to stand up to government in defence of civil and individual liberties, particularly after the passing of the Human Rights Act, but it is not clear that this is in response to the excesses of the Thatcher years so much as in response to new threats such as international terrorism. There was no major programme of criminal law reform in the period - and ironically it may even be the case that there are more crimes now than before - and it is certainly the case the prison populations have continued to rise, even if there is less overt protest and social conflict. And criminal law doctrine and theory go on blithely as though very little has changed at all, still concerned with subjective mens rea and the law of attempt.

Poll Tax Riots 1990

So it is not clear that the Thatcher years left a lasting trace on the criminal law. That, no doubt, is a good thing. If there is a legacy it should be in the reminder that the criminal law is capable of being used in an authoritarian and violent way to serve class interests, and we should be vigilant to ensure that this does not easily happen again.