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.

Sunday, 30 March 2014

On overcriminalisation

We often like to think that the police are always keen for new criminal legislation, because it will give them a greater range of 'tools' from which to choose when doing their job. And we also often think that the tendency to over-produce criminal legislation is a recent one. In this connection then it is interesting to read the comments of C. F. G. Masterman, Liberal politician, chronicler of the state of England, and Parliamentary Under-Secretary at the Home Office from 1909 to 1912.

He recalled that Home Office principles relating to restrictive legislation were
(1) ‘Do not, unless forced to do so, make crimes out of things which are not crimes already’;
(2) ‘Do not introduce proscriptive legislation beyond the standard of conduct which will be accepted by the general feeling of the country’;
(3) ‘Do not throw upon the police a burden greater than they can bear’
(from S Petrow, Policing Morals, Oxford 1994, p.42)

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