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, 9 April 2013

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.

No comments:

Post a Comment