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, 30 April 2013

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.




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