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.

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