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, 26 September 2013

On Crime in 1946

This is a link to a long article that I really like. The writer, Duncan Campbell, asks whether crime in 1946 had certain characteristics - a question prompted by a review of three books about notorious crimes committed in that year.

It seems clear that different periods see certain crimes and trials as emblematic, as capturing some features of a particular moment. Crimes and criminal trials are often seen as offering a kind of unique perspective on society. The trial offers a moment of introspection, inviting observers to reflect on the state of the nation. And certain crimes are also seen as epochal - though this can often be judged only in retrospect - revealing the emergence of new kinds of criminality. Most notoriously, the Jack the Ripper crimes are seen as the the origin of the modern serial killer, but even in less dramatic form it is possible to see new crimes or shifts in the ways that crimes are committed.

Neville Heath
Does it also reveal something about the state of the criminal law? I suspect that it does. New offences are created in response to particular crimes or moral panics. But I suspect that more than that might be going on as well. There might be two ways of thinking about this. On the one hand it is important to look at patterns of prosecution: why, given the multitude of crimes on the books, are certain crimes prosecuted in certain periods and not in others? Campbell's account points to the significance of crimes like bigamy, rarely prosecuted these days, but easily committed in a time of social flux at the end of the war when people could perhaps move around and drop social connections and fashion new identities more easily than is possible now. Also important, though, was the transition from wartime laws and regulations to a more settled state of law and order - when certain kinds of illegality were tolerated differently.

People like Neville Heath were able to exploit the uncertainties in the legal order. Although the wartime period saw intense regulation of food production and the management of resources, there was also a widespread black market, the existence of which was tolerated in many areas - at least until the end of the war. There were many homeless people, or those who had lost their papers, as a result of bombing, and these mingled with those, such as Heath or Hagger (also mentioned in the article) who were deserters and had reason to conceal their identity. And of course there was a general sense of insecurity brought on by the war and its consequences that the institutions of social order, such as the criminal law were struggling to rebuild. This was, no doubt, not as dramatic as in, say, Berlin at the end of the war, where contemporary accounts suggest the existence of a more radical kind of lawlessness, but there was unquestionably a different degree or kind of social and civil order from that which is familiar to us today. And this offered opportunities and new kinds of vulnerabilities, as the stories told by Campbell make clear.

This raises much bigger questions about the relationship between criminal law and social and civil order, which I hope to return to at some point soon.

Tuesday, 24 September 2013

On the criminalization of HIV transmission

This is just a brief follow up to earlier posts on the impact of criminalization of HIV transmission. This video is a fascinating review of much of the social science research that has been carried out on the negative impact of the criminal law in this area.

[I am having problems uploading the video, so for now here is a link and I hope to sort this shortly]

It is a depressing story, but the central message is very clear: criminal law measures which are aimed at reducing the harm of HIV transmission by seeking to deter risky conduct by the threat of sanctions are having the opposite effect in this area.

Tuesday, 17 September 2013

On Criminal Law and the Modernist Novel

I am very pleased to be able to sing the praises of a new book, with just this title, that has just been published by Cambridge University Press. The book is by Rex Ferguson and explores the relationship between literary and legal modernism, looking in particular at the work of EM Forster, Marcel Proust and Ford Madox Ford. I also have to declare an interest here: I was lucky enough to be one of the supervisors of the original PhD which the book is based on, and feel a tremendous sense of vicarious pride at seeing the work in print.

The central claim is simple enough. The modernist novel was based, amongst other things, on a sense of the unreliability of memory or the inability to reconstruct reality. The omniscient external narrator of the Victorian realist novel was replaced by unreliable narrator of the modernist novel. Experience, as a source of access to reality was undermined or questioned. And this, it is argued, was not simply something internal to the novel, but was a response to a broader social and cultural crisis at the turn of the twentieth century.

This much seems clear in relation to the novel (though to state it so briefly is to fail to do justice to Ferguson's argument), but what does it have to do with law? The life of the law, as Oliver Wendell Holmes famously asserted, is experience, and criminal trials, in particular, claim the ability to reconstruct events as they really happened on the basis (amongst other things) of the experience of witnesses. Did criminal law and theories of evidence and the trial remain completely untouched by the advent of modernism and this crisis of experience?

Ferguson's major contribution in his book is to show that they did not; indeed it is hard to imagine how they could have done, even if the law's self image is one of continuing (not to say overweening) self-confidence in its traditional procedures for establishing proof. In his careful analysis of forensic developments of the early twentieth century - fingerprints, graphology - Ferguson shows how the law sought new forms of reliable evidence to supplement or supplant the unreliable testimony of witnesses. And most importantly he suggests that the establishment of Courts of Appeal able to review and overturn the verdicts of trial courts (in England and Wales in 1906 and in Scotland in 1926) was a response to the same crisis that gave rise to the modernist novel - the recognition of the potential fallibility of the criminal trial and its truth finding procedures.

And lest this sound unduly esoteric to some readers, we should note that this is an argument with huge contemporary relevance. As I have noted in earlier posts, Lord Carloway and the Scottish Government are currently proposing the abolition of the requirement of corroboration. Their argument (in somewhat condensed form) is that far from enabling the establishment of truth, the requirement of corroboration stands
in the way of truth, preventing prosecutions where we (the Crown, the police) know that someone is really guilty. This is a claim that is based on certain unexplored assumptions about truth and how we access it - notably that certain bodies possess a kind of professional experience which give them a superior access to truth, and that the criminal trial should mirror this in some way. (And that legal procedures or safeguards block access to truth rather than being central to the process of establishing it).

Irrespective of the rights or wrongs of Carloway's view, what is important here is that we should be examining the assumptions which underlie his position - precisely the sort of full investigation and debate which the Scottish Government seems to want to avoid. The value of  Ferguson's book is that it addresses precisely these kind of underlying questions about trust in experience, and the place for legal safeguards as a response to uncertainty.

Monday, 9 September 2013

On the Criminal Justice (Scotland) Bill

Earlier this summer the Scottish Government published a draft Criminal Justice Bill. Much of the content of this Bill had been trailed in advance. Broadly speaking the Bill is seeking to implement the findings of the Carloway Review, which in turn was a response to the decision in the case of Cadder which held that the Scottish practice of allowing the police to detain and question suspects for a period of up to 6 hours without access to legal advice or assistance (itself created by an earlier Criminal Justice (S.) Act in 1980) was inconsistent with the European Convention of Human Rights.

Lord Carloway
Much of the Bill seems entirely sensible and broadly consistent with the recommendations of the Carloway Review and largely positive responses to the review: it accordingly reforms the law relating to powers of arrest, sets the period for which a person may be held in custody following arrest, and sets out the right of access to legal advice. The more controversial part of Bill relates to the proposed abolition of corroboration (ss.57-61).

For those not familiar with Scots law, the rule is basically that the proof of any essential fact in a criminal trial needs to be supported by two independent sources of evidence. The origins of this rule can be traced back to medieval canon law, as a response to the abolition of trial by ordeal in the thirteenth century, and it was essentially an attempt to quantify the amount of evidence required for a conviction. Most modern systems of criminal law have long since departed from any requirement of corroboration, preferring instead to rely on understanding of the weight and reliability of evidence (more or less the idea that a case should not necessarily fail where there is one strong piece of evidence from a reliable source but no second piece of corroborating evidence). Scots law, by contrast, has not only retained the rule, but for long time also trumpeted it as an indication of the high level of protection given to an accused person under Scots law.

Now irrespective of the pros and cons of the debate about corroboration, it seems clear that if you are going to abolish a rule that is said to provide protection to an accused (and this in response to a decision which directly challenged Scots law over the strength of protections given to an accused in respect of legal advice on arrest), you need to put a robust new system of protection in place. So what does the Bill offer?

The answer is hidden away in s.70:
A jury of 15 members may return a verdict of guilty only if at least 10 of them are in favour of that verdict.
This is a change from current law, where a person can be convicted on a simple 8:7 majority (which, incidentally, has never seemed like much of a protection to me). But how strong a protection is this? One possible measure is to compare this to the majorities required in other jurisdiction that use juries (and here I am pleased to plug the work of my colleagues, James Chalmers and Fiona Leverick, who have looked into this). And the shocking finding here is that most lay jury systems worldwide typically require either unanimity or near-unanimity in order for an accused person to be convicted. They conclude:
the effect of the Criminal Justice (Scotland) Bill as it now stands would be to reduce the level of protection against wrongful conviction offered in Scotland below that offered in any other comparable jurisdiction.
Scottish Justice Secretary Kenny MacAskill:
Corroboration should be abolished...
It is obviously to be hoped that the Scottish Government will take this criticism seriously. It is not a knee jerk reaction to proposals for the abolition to abolish corroboration, but is based on research and extensive comparative knowledge of criminal justice systems. But the signs are perhaps not great. Similar research based criticisms were made of Lord Carloway's argument about corroboration in his report, but these were never addressed. And now the Government seems to want to press ahead with the abolition of corroboration notwithstanding the disquiet expressed by many. The legislative process is committed to public consultation and review, but if the responses to this review are not taken into account we would be entitled to ask whether this commitment is purely cosmetic.

[Our full response to the Bill, and a link to the published findings of Chalmers and Leverick on jury majorities can be found here]

Tuesday, 3 September 2013

On criminal codes

When we think of criminal codes it is normal, at least for me, to think of the great codifications of criminal law that took places from the late eighteenth and nineteenth centuries. But of course there is another sense of 'criminal code' - that of a code for criminals - and this is perhaps why the former sort are often referred to as penal codes (though this is confusing as they do not only detail punishments, but also codify forms of permissible and impermissible conduct). The relationship between crime and punishment in the modern criminal law is a complex one, and is a topic that I  shall return to in future posts, but for now I want to say something about criminal codes as codes for criminals.

The thought is prompted by the death of the famous crime writer, Elmore Leonard, last month. As a notable
stylist, he is well known for his 10 rules of good writing (the writer's code). Slightly less well known are his rules for successful armed robbery (from the novel Swag). These are:
1. Always be polite on the job, say please and thank you. 
2. Never say more than is necessary. 
3. Never call your partner by name – unless you use a made-up name. 
4. Dress well. Never look suspicious or like a bum. 
5. Never use your own car. 
6. Never count the take in the car . 
7. Never flash money in a bar or with women   
8. Never go back to an old bar or hangout once you have moved up. 
9. Never tell anyone your business. Never tell a junkie even your name. 
10. Never associate with people known to be in crime.
All of this seems eminently sensible - and of course in the novel things start to go wrong for the protagonists when they start to ignore their own rules.

While I don't want to encourage crime, it does make me wonder what other rules for the successful commission of crime we might come up, based on what seem to be common errors. Here is a start on my alternative criminal code (based on cases I have read about):
  • If you are fraudulently claiming disability benefit, it is probably better not to participate in a 10K race; and if you must, try to avoid having your picture taken at the finishing line.
  • If you are planning to poison someone do not tell the chemist that the poison you are buying is to kill rats, especially if there is not trace of a rodent problem at your home.
  • Most people offering their services as contract killers on the internet are probably undercover police officers (from the recent Canadian case of Ryan)
  • If the you and your associate in crime are arrested, it is best to avoid discussing your exploits within earshot of the police.
If you know of other rules, please add them below.