tag:blogger.com,1999:blog-5251775614525670282024-03-13T04:14:56.185+00:00Oblique intentionThis is a blog about the history, theory and practice of the criminal law. I shall write about books, cases, trials, novels that catch my interest, and even occasionally about current events. My aim is not comment on current caselaw or issues in criminal justice, but to rather to develop a more oblique critique of the law.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.comBlogger124125tag:blogger.com,1999:blog-525177561452567028.post-51174643011485536742017-01-30T10:26:00.001+00:002017-01-30T10:26:51.226+00:00On Hate Crime (again)There was welcome news from Holyrood last week as the Scottish government announced the long awaited <a href="https://www.holyrood.com/articles/news/scottish-government-announces-independent-review-hate-crime-laws">review </a>of hate crime legislation in Scotland - prompted by the parliamentary defeat of the Offensive Behaviour at Football Act (which I discussed in an <a href="http://obliqueintent.blogspot.co.uk/2016/11/on-zombie-legislation.html">earlier post</a>). The review will start today and will be headed by Lord Bracadale, who is charged with looking <span style="font-family: inherit;">at <span style="background-color: white;">whether current laws are appropriate and consistent, whether hate crime legislation needs simplified or harmonised and whether new categories of hate crime, such as for age and gender, need to be created.</span></span><br />
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<span style="font-family: inherit;"><span style="background-color: white;">This is clearly both welcome and necessary, not only because of the poor state of the legislation on football, but because there has been a lot of legislation in this area over the last 30 years, and the result is a a number of provisions which apply different tests and do not always sit easily alongside each other. It would be good to know a little more about the proposed methodology of the review, though. Lord Bracadale is quoted as saying that he wants his findings to be 'evidence based', but it is not clear whether this means gathering new evidence (though this would seem to be unlikely in the 12 month period for the review) or reviewing evidence which is already in the public domain. It is clear that community and interest groups will be invited to give evidence - though it is unclear whether this will be in person or in writing. </span></span><span style="background-color: white; font-family: inherit;">It is also worth comparing this to the </span><a href="http://www.lawcom.gov.uk/project/hate-crime/" style="font-family: inherit;">review </a><span style="background-color: white; font-family: inherit;">of English and Welsh hate crime legislation, carried out a few years ago by the Law Commission - and it is not clear why the Scottish Law Commission should not have been asked to carry out the task here.</span><br />
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Overall, then, this is a welcome, if overdue, development - but its success will depend on the methodology adopted by Lord Bracadale and the extent of the consultation and evidence gathering process. In the meantime, though, given that the review will last for (at least) a year, it owuld be good to see a suspension of any prosecutions under the, now discredited, Offensive Behaviour at Football Act.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com1tag:blogger.com,1999:blog-525177561452567028.post-62511969319288075362017-01-20T11:10:00.002+00:002017-01-20T11:13:57.333+00:00On civil remedies and the crime of rapeThe decision in the case of <a href="https://www.scotcourts.gov.uk/search-judgments/judgment?id=d22e28a7-8980-69d2-b500-ff0000d74aa7">DC v DG & DR</a> which was published on Tuesday is potentially of huge significance for the Scots law of rape. The <a href="http://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-38651041">facts </a>were that DC alleged that she had been raped, while extremely drunk, by two professional footballers on 2nd January 2011. She reported the incident to the police immediately but in July 2011, for reasons that have not been made public, the decision was taken not to prosecute the men involved. She then subsequently, with the support of <a href="http://www.rapecrisisscotland.org.uk/news/rape-crisis-scotland-hails-landmark-ruling-in-scotlande28099s-first-civil-action-for-damages-for-rape/">Rape Crisis Scotland</a>, brought a civil action for damages against the men. She was successful in this, with Lord Armstrong holding that, on the balance of probabilities she had been raped by the men, and awarding damages of £100,000.<br />
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The importance of the case must be seen first of all in the fact that civil actions of this sort are almost unheard of, and it offers the opportunity for the victims of rape and other sexual assaults to pursue other kinds of legal remedy. Of course, <a href="http://www.scottishlegal.com/2017/01/19/qc-cautions-against-irresponsible-comments-in-wake-of-goodwillie/#">as has been pointed out</a>, the case is somewhat unusual in that the defenders were professional footballers and therefore had financial resources - and this may not be the case in other incidents of rape. But this must also be seen in the context of the high attrition rate in rape cases - something illustrated by the publication of the <a href="http://www.gov.scot/Publications/2017/01/6376/4">annual statistics on criminal proceedings </a>on the same day. These showed that in spite of the rising number of prosecutions for sexual offences, the attrition rate in rape remained high: of just under 2000 rapes reported to the police, there were only 216 people were prosecuted, and of these only 111 were convicted. This means that a significant number of victims are left without a remedy - and so any means of recognising the wrongs committed against them should be welcomed.<br />
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Of course, we must also be cautious because of the fact that this was a civil decision, subject to a lesser burden of proof, and different evidential rules. However, what is striking about the judgment is that, while he does not refer to corroboration, Lord Armstrong is clear that he is not relying solely on the account of the complainer, and that the complainer's account is supported by other independent sources of evidence. This, at the very least, might raise questions about why the decision was originally taken not to prosecute in this case.<br />
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But for me the real interest of the decision from a legal point of view lies in the way that Lord Amstrong carefully constructs the evidential case and applies the law - and this in some ways might act as a model for understanding how the law should be applied. The main difficulty in this case was that the complainer was so drunk that on her own admission, she had blacked out and had no memory of the events that took place. In these circumstances it was conceivable, as medical witnesses pointed out, that she might have been able to function as though normal, and might have appeared to have consented - and it is perhaps this possibility that leads juries in similar cases to acquit when it seems to be the word of the complainer against that of the accused. Against this Lord Armstrong takes seriously the rule (in <a href="http://www.legislation.gov.uk/asp/2009/9/section/13">section 13</a> of the Sexual Offences (S) Act 2009) that a person who is incapable because of the effect of alcohol (or other substances) is incapable of consenting. Here he demonstrates that, whatever might have been her actions, there was compelling evidence from a range of sources that she had drunk sufficient quantities of alcohol to render her incapable and there were witnesses to the effects of alcohol on her. (And the fact that she seemed to have flirted with one of the men earlier was not the same as consenting to sex). It remained then to show that the defenders could have had no reasonable belief in consent, and he demonstrated the inconsistencies in their evidence and its self serving nature, to conclude that they were unreliable.<br />
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Of course, questions will remain over whether this evidence would have convinced a jury that it met the criminal burden of proof (beyond reasonable doubt), but the value of the civil judgment here is that the judgment carefully sets out the reasons for the decision, and in doing so provides an invaluable model and demonstration of how the law should properly be applied.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-22905612080075874862016-12-07T10:09:00.000+00:002016-12-07T21:19:36.918+00:00On the age of criminal responsibilityScots criminal law has long prided itself on its distinctiveness, though recently it has seemed as though some of the areas in which it is distinctive give little cause for celebration: the retention of the requirement of corroboration, the anomaly of the not proven verdict, exceptionally high rates of <a href="http://www.sipr.ac.uk/downloads/Landscape_review_stop_search_270116.pdf">stop and search of young people</a>, and, of course, an age of criminal responsibility of 8.<br />
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This last has long been the target of legal reformers. It is inconsistent with international standards as laid down by the UN Committee on the Rights of the Child, and makes a mockery of claims to be world-leading in the area of criminal justice. The <a href="http://www.chscotland.gov.uk/">Children's Hearings system</a>, introduced in Scotland following the <a href="http://www.gov.scot/Resource/Doc/47049/0023863.pdf">Kilbrandon Report</a> in 1968 is in many ways a model system of juvenile justice, informed by welfare principle and a commitment to the needs of the child, but it has always sat uneasily with the fact that a child as young as 8 might be prosecuted. And though the most recent review led to a <a href="http://i%20am%20happy%20to%20consent%20to%20disclosure%20of%20this%20report%20if%20it%20is%20requested./">formal legislative commitment</a> not to prosecute a child below the age of 12, this sat awkwardly with the retention of 8 as the age of criminal responsibility. The situation in law was that an immunity from prosecution was conferred on a child between the ages of 8 and 12, rather than a recognition that a child below the age of 12 lacked the capacity for criminal responsibility altogether. It also meant that a child between the ages of 8 and 12 might have a criminal record if they had been before a Children's Hearing and were judged to have committed a criminal offence.<br />
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So it was pleasing to see the <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-38160549">announcement </a>made last week that there Scottish Government planned, finally, to raise the minimum age of criminal responsibility to 12 by 2018. It seems right that children should not be labelled as offenders or criminals for things done before they reached the age of 12, but this is merely bringing Scotland into line with international standards. A more radical move might be a commitment not to prosecute children between the ages of 12 and 16. If Scotland were serious about recognising the Kilbrandon principles this would be step worth taking.<br />
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<br />LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com1tag:blogger.com,1999:blog-525177561452567028.post-58852610888181981692016-11-25T17:16:00.000+00:002016-11-25T17:16:44.475+00:00On terrorist crimesI suspect that I am not alone in being confused at the <a href="https://www.theguardian.com/uk-news/2016/nov/23/thomas-mair-found-guilty-of-jo-cox-murder">message </a>coming from the prosecution on the conviction of Thomas Mair for the murder of Jo Cox. It was, they insist, a terrorist murder and he had been tried as a terrorist (which is why the trial was in London). But they go on to say that it was not prosecuted under the Terrorism Acts and the jury had not been told that he was regarded as a terrorist because he had been prosecuted for the common law crime of murder, and they had not raised the question of his political motivation. But he may have been <a href="https://www.theguardian.com/politics/2016/nov/23/thomas-mair-trial-and-the-question-of-terrorism-jo-cox">sentenced </a>as a terrorist - whatever that means as the judge could have given a 'whole life' sentence in a particularly serious case of murder, which this undoubtedly was. So is he a terrorist, or was it a terrorist offence? It is hard to say.<br />
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<tr><td style="text-align: center;"><a href="https://i.guim.co.uk/img/media/6d27959bf3d023e3f6abb02e6bcc4ef7591ea26f/0_1289_2333_1399/master/2333.jpg?w=300&q=55&auto=format&usm=12&fit=max&s=94cf63c1d8a8d1d45c1654cfa7831075" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="120" src="https://i.guim.co.uk/img/media/6d27959bf3d023e3f6abb02e6bcc4ef7591ea26f/0_1289_2333_1399/master/2333.jpg?w=300&q=55&auto=format&usm=12&fit=max&s=94cf63c1d8a8d1d45c1654cfa7831075" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Thomas Mair, the killer of Jo Cox MP</td></tr>
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The case for arguing that it was a terrorist act seems to rest on the argument that it was motivated by political ends. As he attacked his victim he yelled political slogans, and the police subsequently discovered that he had collected nazi memorabilia and that he had far-right sympathies - though he was not associated with any group and did not seem to be acting with (or for) anyone else. This, in a literal sense, then falls within the definition of terrorism in the <a href="http://www.legislation.gov.uk/ukpga/2000/11/section/1">Terrorism Act 2000 s.1</a>: it was an act involving serious violence against a person and was done for the purpose of advancing a political cause.<br />
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The case against would be to say that there are many politically motivated crimes which do not necessarily amount to terrorism. That is to say that while much terrorism is politically motivated the question of political motivation cannot be determinative of the question on its own. Our history is full of political assassinations and bombings, but it is only recently that we have begun to refer to them in terms of terrorism. And the idea of terrorism seems to imply that the violence (or its threat) would create some sense of terror or insecurity. Of course, this can itself be problematic as certain serial killers have created precisely this sense of terror among the community of the victimised, though we would not normally regard serial killers as terrorists.<br />
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This points to the well known difficulties of trying to produce a satisfactory definition of terrorism, which I something that I cannot resolve here. However, it is worth asking what is stake in labelling Thomas Mair a terrorist. Leaving aside the question (which I have been unable to resolve) of whether there are special sentencing powers here, labelling the killing as a terrorist act makes terrorism seem more widespread and arguably contributes to a climate of fear and insecurity - and this may be in the interests of the police or security forces as it can justify the use of, of call for, special measures or the suspension of normal rules of law. A random killing, however tragic, by a loner with a history of mental illness may be unduly dignified, or treated with an unwarranted degree of seriousness, if we call it an act of terrorism - and we should resist these moves.<br />
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<br />LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-7604063077050811972016-11-24T17:28:00.000+00:002016-11-24T17:28:04.208+00:00On Kitty Genovese<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
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<tr><td class="tr-caption" style="text-align: center;">Kitty Genovese</td></tr>
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As a teacher of criminal law, I have on numerous occasions defaulted to the story of Kitty Genovese to explain the issue of omissions. The story familiar from textbooks goes like this: on the night of Friday March 13th 1964 a young woman called Kitty Genovese was attacked and murdered in the New York suburb of Kew Gardens in the borough of Queens. The attack took place in a densely populated residential area, and though it was established that her cries of desperation were heard by 38 people living nearby, not one of them came to her assistance.<br />
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Her death might have been prevented, but the fact that it was not is taken evidence of the anonymity of life in modern cities and the decline in our sense of obligation to come to the aid of strangers. The point in law is to ask questions about the extent of bystander guilt, or whether there should be an offence of 'failure to rescue'.<br />
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It should, perhaps, come as no surprise that the 'real' story of Kitty Genovese is nothing like the textbook version. Why, after all, would we let truth get in the way of a good example? But the real surprise is that the story of Kitty Genovese is much more interesting and tells us a great deal more about modern urban life.<br />
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<a href="https://i5.walmartimages.com/asr/4eedb9c5-1f4b-443c-8f18-6100c72e1142_1.951e1c0b5be2d57fe2a208060e25c17f.jpeg?odnHeight=450&odnWidth=450&odnBg=FFFFFF" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="https://i5.walmartimages.com/asr/4eedb9c5-1f4b-443c-8f18-6100c72e1142_1.951e1c0b5be2d57fe2a208060e25c17f.jpeg?odnHeight=450&odnWidth=450&odnBg=FFFFFF" width="200" /></a>This story is told in a new book called <i><a href="http://www.cornellpress.cornell.edu/book/?GCOI=80140100742020">"No One Helped". Kitty Genovese, New York City and the Myth of Urban Apathy</a></i> by Marcia Gallo. There are two dimensions to Gallo's story. The first is to uncover Kitty's life, to restore something that was erased by the myth, and to show how it was connected to the story of the development of New York at the time. The second is to trace the origins and development of the legend - how the Kitty Genovese story was created and sustained over the period of over 50 years since her killing.<br />
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The first thing that undermines our assumptions is that Gallo shows that the murder was witnessed by at most one person in the neighbourhood, rather than the 38 of myth, and that Kitty was well known to, and mourned by, her neighbours as a lively and friendly woman. Not only was Kitty not an isolated and lonely individual, but she was an independent young woman with many connections in both the city and her neighbourhood. She was a lesbian and lived with another woman in her apartment in Kew Gardens, and enjoyed the growing city precisely because of the opportunities it offered her to be herself - limited as they were at the time.<br />
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So why did the myth develop in the way that it did? Here Gallo shows that this was a deliberate strategy employed the new editor at the New York Times to attract readers and try to reconnect with New Yorkers. He sent a special reporter out to interview police and neighbours, and this led to the infamous headline. But what was important here was that it connected with growing fears about crime and the city. The story articulated a new focus on the victim, or at least the idea of victimhood if not the actual victim (and it is interesting to note that the NYT new about her sexuality but did not consider it to be of interest). There was also the fear of apathy and the indifference of bystanders drawing on underlying fears of modern life, and these were ruthlessly exploited by the press, and in a series of books and movies. The real moral of the story is less bystander apathy than media exploitation of a crime story for their own ends.<br />
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What is interesting is that a different understanding emerges from Gallo's account, restoring our sense not only of the actual victim and her relationships but also of place and time. This is a valuable and important corrective to the easy assumptions that we often make when confronted with such stories - and it is safe to say that I won't be using the example of Kitty Genovese in this way again.<br />
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<br />LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com1tag:blogger.com,1999:blog-525177561452567028.post-33549832436792197102016-11-18T10:34:00.002+00:002016-11-18T10:34:42.941+00:00On markets and crime<div class="separator" style="clear: both; text-align: center;">
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I have been thinking a lot recently about the relationship between criminal law and financial markets, and want to write more about this in the future. One of the things that has struck me is the links that have been drawn between between the financial crisis of 2008/09 and criminal misconduct by bankers and financial traders - and the claim that criminal behaviour was at least partially responsible for the crisis.<br />
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<a href="https://images-na.ssl-images-amazon.com/images/M/MV5BMjIxMjgxNTk0MF5BMl5BanBnXkFtZTgwNjIyOTg2MDE@._V1_UX182_CR0,0,182,268_AL_.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="https://images-na.ssl-images-amazon.com/images/M/MV5BMjIxMjgxNTk0MF5BMl5BanBnXkFtZTgwNjIyOTg2MDE@._V1_UX182_CR0,0,182,268_AL_.jpg" width="135" /></a>This is not just rhetoric. There have been a number of high profile prosecutions. Traders have been prosecuted for <span style="font-family: "times new roman" , serif; font-size: 12pt;">LIBOR rigging or the exploitation of high frequency trading algorithms to exploit minute differences in prices between different markets. Banks have been fined for the mis-selling of financial products. And the <a href="http://www.parliament.uk/business/committees/committees-a-z/joint-select/professional-standards-in-the-banking-industry/news/changing-banking-for-good-report/">Parliamentary Commission on Banking Standards </a>which reviewed the conduct of the major banks in the wake of the crisis concluded that it was necessary to create a new criminal offence of "reckless misconduct in the management of a bank". And think about the slew of recent <a href="http://fortune.com/2015/12/27/big-short-wall-street-movies/">movies </a>from <i>The Wolf of Wall Street</i> to <i>Margin Call</i> or <i>The Big Short</i>, which dramatise the crash in terms of criminal conduct and depict financial institutions and markets as a new kind of 'wild west' where there are few, if any restraints on conduct, and criminal conduct is positively encouraged.</span><br />
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<a href="https://static1.squarespace.com/static/56eddde762cd9413e151ac92/t/56f6e29eb2d7c7b358cf8dad/1459020450333/" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="125" src="https://static1.squarespace.com/static/56eddde762cd9413e151ac92/t/56f6e29eb2d7c7b358cf8dad/1459020450333/" width="200" /></a><span style="font-family: "times new roman" , serif; font-size: 12pt;">These changes in the use of the criminal law reflect a more fundamental change in understandings of markets
themselves. For a long time markets have been seen as essentially 'orderly'. The free market, in the conception of Adam Smith, had its own logic: it was naturally stabilising and self-regulating. If, on occasion, the criminal law needed to step in it was to deal with fraud or deception - policing the outer limits of acceptable conduct. </span><span style="font-family: "times new roman", serif; font-size: 12pt;">However, in the vision of the markets that appears in these recent reports it is no longer just the ‘rogue trader’ or the ‘bad apple’ that is the
problem. Increasingly, financial institutions and market relations
are themselves seen as criminogenic, corrosive of social relations and
incentivising opportunistic criminal conduct. The market, that is to say, is not orderly but disorderly, and criminal law should not only police the margins but shore up the core values and structures. And this is not simply the view of
anti-capitalist scholars and activists, but of market advocates and
conventional economists, who now talk about the need to regulate markets more tightly - and advocate the more systematic use of the criminal law.</span><br />
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If I am right about this, then criminal lawyers need to start thinking beyond the immediate question of, say, bank regulation, and begin to engage with the broader questions about how we think about the relation between markets and social order.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-44225765894832091902016-11-09T15:13:00.003+00:002016-11-10T09:57:07.257+00:00On Zombie LegislationLast week saw the Scottish Parliament vote in favour of <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-37835502">repealing </a>the much-criticised <a href="http://www.legislation.gov.uk/asp/2012/1/contents/enacted">Offensive Behaviour at Football and Threatening Communications (S) Act 2012</a>. While the vote is merely advisory, and for now the Scottish Government have undertaken to review the legislation, it creates an interesting new category of 'zombie' legislation. It has not yet been repealed, but neither does it have the support of parliament. It is not yet dead, but not quite alive - the living dead.<br />
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But this raises a significant issue. Will it be legitimate for the police to continue to enforce the legislation or for the Crown Office to continue bring prosecutions? Is it legitimate for legislation that has been formally condemned in this way to be used after Parliament has clearly indicated that it is no longer has the support of its members? So far, I can see no indication on the websites of either Police Scotland or the Crown Office that there will be any change in policy.<br />
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The vote has been seen as an example of political point scoring, but the underlying criticism is that the offences in the Act are poorly drafted and that the legislation is illiberal - and I have written <a href="http://obliqueintent.blogspot.co.uk/2011/11/on-sectarianism-as-hate-crime.html">before </a>about these shortcomings. Until reassurances have been offered on these underlying issues it must be inappropriate to use the Act. This is not to approve sectarianism, but to recognise that there are real concerns about the scope of the offences which were not properly addressed when the Act was passed.<br />
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While it may formally remain the law, there is no question that it now completely lacks any legitimacy, whatever its supporters in government might say. It is truly zombie legislation.<br />
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<br />LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com2tag:blogger.com,1999:blog-525177561452567028.post-13022076178236798442016-11-02T21:34:00.002+00:002016-11-02T21:34:32.253+00:00On Houdini's 'The Right Way to do Wrong'<a href="https://www.magictricks.com/assets/images/houdini/posters/houdini_handcuff_poster.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="https://www.magictricks.com/assets/images/houdini/posters/houdini_handcuff_poster.jpg" width="139" /></a>Monday was the 90th anniversary of the death of Harry Houdini, an event apparently marked every year by the holding of a <a href="https://www.theguardian.com/stage/2016/oct/31/houdini-seance-new-york-dorothy-dietrich">seance</a> - though whether this was Houdini's effort to communicate from beyond the grave or just his final joke at the expense of fake mediums remains unclear. Houdini is obviously celebrated as a famous escapologist, so I was intrigued when I came across a reference to a book that he had written called <i>The Right Way to Do Wrong - </i>promising perhaps a new kind of legal moralism... (thanks to the wonder of the internet you can download it for free <a href="https://archive.org/details/rightwaytodowro00conggoog">here</a>).<br />
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The book is fascinating - even if, sadly, it is less of a guide to legal moralism or to how to be successful criminal, than an account of the various frauds and charlatans that Houdini claims to have encountered over the course of his career. Indeed, he is at pains to make it clear that his aim is not to encourage crime but to allow the ordinary member of the public to safeguard themselves by pointing out the way that thieves and fraudsters work. It is thus an early example of crime prevention literature, advising the householder on the kind of locks to use or the best way to protect their house when they are away, or providing reminders that schemes which promise something for nothing are not always what they seem.<br />
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For me, most entertaining was the guide to the types of scams and criminal enterprises operated at the turn of the century. Many are traditional - pickpockets, burglars and fraudsters - that would have been familiar in many cities and countries. But some reflect changing technologies - the railroad or the telegraph and the mail - that opened up new opportunities for the enterprising criminal.<br />
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In all of this Houdini presents himself as the honest broker, guiding the naive or innocent around the underworld that surrounds them in this newly urbanised and mobile society where strangers were not always what they seemed. Most of the criminals he exposes had been caught, though a few lucky individuals escaped with their ill-gotten gains. The right way to do wrong, as ever, is perhaps not to be detected.<br />
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<br />LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-76721588588195615362016-10-27T09:34:00.001+01:002016-10-27T09:34:33.888+01:00On Chhokar and double jeopardyYesterday saw the publication of the <a href="https://www.scotcourts.gov.uk/search-judgments/judgment?id=261921a7-8980-69d2-b500-ff0000d74aa7">decision </a>of the Court of Appeal in the case of the application to set aside the acquittals of the men originally charged with the murder of Surjit Singh Chhokar and to bring a new prosecution against them. In the light of the fact that, as we now know, Ronnie Coulter has been convicted of the murder, the decision provides some interesting background on that case and also on the interpretation of the provisions of the <a href="http://www.legislation.gov.uk/asp/2011/16/contents/enacted">Double Jeopardy (S) Act 2011</a>.<br />
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The <a href="http://obliqueintent.blogspot.co.uk/2012/01/on-double-jeopardy.html">rule against double jeopardy</a>, which is now stated in section 1 of the Act, prevents the prosecution of a person who has already been either convicted of, or acquitted of, an offence with the same offence or with any other offence arising out of the same acts. This can be set aside, on application to court, in certain limited circumstances, which are set out in sections 2-4. These are that the acquittal was tainted by the behaviour of either a juror or the judge (s.2); that the person acquitted makes an admission of guilt following the acquittal (s.3); or that new evidence has emerged which would substantially strengthen the case against the person acquitted (s.4).<br />
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<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="http://ichef-1.bbci.co.uk/news/624/cpsprodpb/9150/production/_91500273_chhokarcomp.gif" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="179" src="https://ichef-1.bbci.co.uk/news/624/cpsprodpb/9150/production/_91500273_chhokarcomp.gif" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Ronnie Coulter, Andrew Coulter and David Montgomery</td></tr>
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With the the publication of the decision we now know that the application to set aside the acquittal of Ronnie Coulter was made under ss.3 & 4 of the Act. (The application was made in respect of all three men originally charged, but prosecution was only permitted in respect of Ronnie Coulter). The Court laid emphasis on two particular facts. First, it was argued that, Coulter had made a series of admissions to different witnesses that he (and the other men) had got away with murder and that he had done it. Second, it was argued that there was evidence that Coulter had asked his sister both to look for a knife (presumably the murder weapon) in a spot where it had allegedly been disposed of, and to buy another knife to replace a knife that was missing from the set in his kitchen (presumably to demonstrate to the police that no knife was missing).<br />
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The tests to be applied to the new evidence are that it could not have been known to the Crown at the time of the original trial, that it should be reliable, that it should substantially strengthen the case against the accused. The Crown also had to demonstrate that it would be interests of justice to prosecute and that it would be possible to have a fair trial. In the case of this new evidence, the Court took the view that the evidence about the knives strengthened the likely case against Coulter and might allow a jury to consider that, even where he was known to have acted with others who were not on trial, that he was the one who struck the fatal blow. They accepted that the credibility and reliability of the evidence, particularly as it related to the admissions, would have to be tested, but that it was sufficiently robust to allow the application to grant permission for a new prosecution to proceed. Finally, in relation to the question of whether it was in interests of justice, the Court stressed that it was not desirable that an accused person should be able to boast that they had got away with committing the crime, and recommended prosecution on this basis.<br />
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What conclusions can we draw from this? At one level, I can imagine that the Appeal Court are quite relieved. By rejecting the applications against Andrew Coulter and David Montgomery they were gambling on the evidence being strong enough that a jury would conclude that he had been the one who stabbed Chhokar. This, it must be stressed, was far from clear cut, and his defence strategy in the trial was to attack the credibility of the witnesses and to blame the other men. If he had been acquitted we would have been back to the situation in 1999 where the defence of blaming each other (where the others were not on trial at the same time) led to their separate acquittals. This would have led to questions being raised about why they had proceeded against the men separately in spite of knowing that all three had been involved in the attack.<br />
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Does it tell us anything about the application of the provisions of the Double Jeopardy Act? In distinguishing between the applications against the three men, it seems clear that the Court recognised some sort of evidentiary threshhold. It is not just any new evidence that might trigger the exception to the principle of double jeopardy, as the evidence against Andrew Coulter and David Montgomery was considered too indirect. The Court also had a view on the the original trial, and the circumstances that led to the acquittal in judging what might be deemed to strengthen the Crown case. And finally, it has become very clear from this case that anyone acquitted of a serious criminal charge will be very ill advised to go around boasting that they got away with it...LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-82699683789626763522016-10-17T22:01:00.001+01:002016-10-17T22:01:35.957+01:00On sexual history evidenceI was off to the BBC studios this morning for an interview about the use of sexual history evidence in rape trials in Scotland. The concern was prompted in part by the Ched Evans case in England, where the court permitted evidence of what the victim had reportedly said during sexual encounters with other men. This had then led to a story in yesterday's <a href="http://www.heraldscotland.com/news/crime_courts/14804648.Scandal_of_rape_victims__39__sexual_histories_paraded_in_Scottish_courts/">Herald </a>where it was reported that from <span style="font-family: inherit;">January to March this
year 43 out of 57 applications to permit sexual history evidence of the complainer were granted in full and a further five in part.</span><br />
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<a href="https://static.independent.co.uk/s3fs-public/styles/story_medium/public/thumbnails/image/2016/10/14/15/ched-evans.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="150" src="https://static.independent.co.uk/s3fs-public/styles/story_medium/public/thumbnails/image/2016/10/14/15/ched-evans.jpg" width="200" /></a><span style="font-family: inherit;">It is clear that there is cause for concern here. The law on this point (and the aim of the law) is pretty clear. According to<a href="http://www.legislation.gov.uk/ukpga/1995/46/part/XII/crossheading/evidence-relating-to-sexual-offences"> sections 274 and 275</a> of the Criminal Procedure (Scotland) Act 1995 it is not permitted to introduce evidence of previous sexual conduct of the complainer with a view to showing that the complainer was more likely to have been consenting to the act complained of or was not of good sexual character. This is subject to an exception where evidence might be led of specific occurrences which might shed light on the character of the complainer or any condition or predisposition that they might have. The application to lead such evidence must be made in writing before the start of the trial, and everything is subject to general requirements to respect the privacy of the complainer and that the probative value of the evidence should outweigh any prejudicial effects. </span><br />
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<span style="font-family: inherit;">The clear aim of these types of provisions since they were first introduced into Scots law in 1986 was to protect the complainer in sexual offences trials by limiting the capacity of the defence to question them about their prior sexual conduct where this was not relevant to the proof of the particular charge. </span>However, as my colleague Michele Burman has <a href="http://www.sccjr.ac.uk/publications/evidencing-sexual-assault-women-in-the-witness-box/">demonstrated </a>in research on the operation of the law, these provisions have actually had a perverse effect. Lawyers routinely make early applications to lead such evidence in sexual offences trials just in case they might wish to do so; these applications are routinely agreed with prosecution; and they are not being rigorously policed by the court. This tends to suggest that the figures quoted in the Herald are not evidence of a new development in the law, but merely confirms the situation which she showed has existed for some time.<br />
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So what is to be done? It is not clear to me that much would be gained by reforming the law. The grounds for excluding such evidence are set out in pretty clear terms already - and there is a reasonably clear understanding and acceptance, at least in general terms, of the aims of the law. There are always going to be some cases where sexual history may be relevant, and fairness to the accused requires that there be a mechanism for allowing this. There does, though, need to be a review of the operation of the law and some serious thought given to how the current situation might be addressed. It is not clear to me that we are dealing with the same situation as, say, 20 or 30 years ago, where there was significantly less understanding or tolerance of sexual freedom. The law has changed to reflect new attitudes towards sexual autonomy. And the way that sexual offences are investigated and prosecuted has been transformed in the wake of campaigning by victims organisations. So the framework within which the law is operating is very different. The question now must be to find out in which types of cases these permissions are sought, and the types of sexual history evidence that are led so as to engage with and challenge the practices that permit the undermining of our law.<br />
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LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-38594844268154620982016-10-14T10:22:00.001+01:002016-10-14T10:22:29.186+01:00On 'His Bloody Project'Like many people I have been enjoying reading Graeme Macrae Burnet's wonderful novel <i><a href="http://saraband.net/sb-title/his-bloody-project/">His Bloody Project</a></i> this summer. Without giving away the plot, the novel is made up of documents relating to the case of Roderick Macrae, a young man accused of murdering three people in the remote highland community of Culduie, near Applecross in Wester Ross in 1869. In addition to just enjoying the book on its own merits, for me there is the additional (and unaccustomed) pleasure of reading a novel based in the Scots criminal justice system in the 1860s.<br />
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The book starts with a series of witness precognitions (or statements) which are then followed by the 'confession' of Roderick Macrae as recounted to his lawyer, medical reports, an 'extract' from a (made up) book called 'Travels in the Border-Land of Lunacy' by the actual prison doctor, James Bruce Thomson, and then an account of the trial in Inverness, drawing on supposed 'journalistic' sources. This is a remarkable act of ventriloquism. Burnet expertly catches the tone of these different types of document and speeches. (There is one small inaccuracy, which is that a trial in the High Court of Justiciary in 1869 would have been before a single judge, rather than three sitting as a bench). The highlight for me was his reinvention of the character of James Bruce Thomson, who wrote extensively on lunacy (as it was known) and the hereditary nature of crime, and whose writings influenced later criminologists. Thomson did not actually write a book but, prompted by the novel, I have been doing some digging around in libraries and have found some of his writings - and will write about these in a later post.<br />
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<a href="https://pictures.abebooks.com/NATALEBOOKS/13591296665.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="https://pictures.abebooks.com/NATALEBOOKS/13591296665.jpg" width="150" /></a>The book itself is (at least in part) modelled on two different literary forms. The first is that of the notable trials series. These were a series of very popular books published by Edinburgh publisher Wm Hodge between about 1905 and 1950. The main part of each book was a transcript of a particular trial - celebrated because of the notoriety of the crime or the criminal. These might be historical (the trial of Mary Queen of Scots or Sir Walter Raleigh) or of contemporary interest, but broadly reflected the early twentieth century fascination with criminal trial. These were then accompanied by an editorial essay, which reflected on the significance of the case. (I have written before about <a href="https://www.blogger.com/blogger.g?blogID=525177561452567028#editor/target=post;postID=6904597366402467518;onPublishedMenu=template;onClosedMenu=template;postNum=68;src=postname">William Roughead</a>, who was one of the best known editors).<br />
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<a href="https://s2.adlibris.com/images/4582451/i-pierre-riviere-having-slaughtered-my-mother-my-sister-and-my-brother.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://s2.adlibris.com/images/4582451/i-pierre-riviere-having-slaughtered-my-mother-my-sister-and-my-brother.jpg" width="135" /></a>The other model (which Burnet acknowledges) is Michel Foucault's <i>I Pierre Riviere, having slaughtered my mother, my sister, and my brother...</i>. This was the confession from an actual case that was discovered and published by Foucault and his collaborators in the 1970s when he was researching psychiatry and disciplinary power. There is one formal difference between the criminal justice systems of France and Scotland which Burnet manages well. In France, the confession was formally part of the evidence in the case and the trial. In Scotland (as in England and Wales) an accused person was not formally allowed to testify on their own behalf until 1898. This meant that an accused person was literally silenced in their own trial - unable to speak on their own behalf or to <span style="text-align: center;">answer accusations against them - a position that was justified on the grounds that to allow such testimony would be to offer the accused person the temptation to perjure themselves. This led one French observer, Charles Cottu, of an English criminal trial in the 1820s to remark that the place of the accused might as well be taken by a hat placed upon a stick. In the novel, then, the confession is not presented to the court but is recounted to the lawyer - though not without questions accordingly being raised as to its authenticity.</span><br />
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<span style="text-align: center;">I thoroughly recommend the novel (and indeed also<i> I, Pierre Riviere</i> and the notable trials series, for the real enthusiasts). It is wonderful to see that it has been shortlisted for the Man </span><span style="text-align: center;">Booker Prize, bringing the book to a wider readership, and will keep my fingers crossed on the 25th October.</span><br />
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<span style="text-align: center;"><br /></span>LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-73034622865323646332016-10-06T20:05:00.001+01:002016-10-06T20:05:13.546+01:00On the Surjit Singh Chhokar caseYesterday saw a momentous event in Scotland - the conviction of Ronnie Coulter for the murder of Surjit Singh Chhokar in 1998. Coulter was originally tried (and acquitted) for the murder in 1999, but was put on trial again this year following the change in the double jeopardy laws in 2011. The four week trial ended yesterday when the jury returned a verdict of guilty for the murder after deliberating for 10 hours.<br />
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The story of the case, at least in its early stages, was one of institutional racism and botched decision making. It was fairly clear from the start that three man had been involved in the incident that led to the killing of Chhokar - Ronnie Coulter, his nephew Andrew Coulter and David Montgomery. The Crown then had two separate trials, each of which collapsed when the men on trial blamed the others for the killing. This was heavily criticised by Lord McCluskey at the original trial of Ronnie Coulter. As a result the three men went free.<br />
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This was followed by three separate investigations into the failings in the case. The first was an internal investigation by Elish Angiolini (later to be Lord Advocate) into the handling of the case by the fiscal service. The second one, as the profile of the case was rising, was by Sir Anthony Campbell QC into <a href="http://archive.scottish.parliament.uk/business/committees/historic/equal/reports-01/chhokar-b-00.htm">the investigation and prosecution</a> of the offence. And the third, and most damning, was a report by Raj Jandoo into <a href="http://archive.scottish.parliament.uk/business/committees/historic/equal/reports-01/chhokar-vol01-00.htm">institutional racism</a> in the handling of the case. The Jandoo report found that there was evidence of institutional racism in the failure of the police to consider that the offence might have been racially aggravated, in the failure of the Crown Office to explain its decision making to the family, and in the courts to explain why it was that the trials had collapsed. These issues were to be addressed by the police and fiscal service, but nothing could be done at the time to bring the men to trial again. This changed with the reform of the <a href="http://www.legislation.gov.uk/asp/2011/16/contents">double jeopardy laws </a>in 2011, which allowed a person who had been acquitted of a crime to be tried again for the same offence, under certain limited circumstances.<br />
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The investigation remained open and this year the new prosecution was brought against Ronnie Coulter - with each of the other two men testifying against him. He in turn led a defence of incrimination - that the other men had committed the crime - and that they were blaming him because of a series of family feuds and to avoid their own liability.<br />
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The history of the case tracks the developments in Scottish criminal justice over the last 18 years - a period that coincides with the development of devolved Scottish government. One important change, I have already noted, was the reform of the double jeopardy laws, but more important were two larger movements that suggest how Scottish criminal justice was modernising. The first was the increased recognition of human rights, and in this particular context, of the rights of the victim. There have been extensive developments in the law to protect victims as witnesses, to improve the service offered to victims in court, and to render the process of prosecution decision making more open and accountable to victims. The second development is the recognition of hate crime - including forms of racially aggravated crime. These map on to the serious deficiencies identified by the Taylor and Jandoo reports and their have been significant advances in these areas.<br />
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This is not to say that there are not still deficiencies - note the recent problems of Police Scotland - or that racist crimes may not still take place. But we can at least hope that victims and their families will receive better and fairer treatment from criminal justice institutions.<br />
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Finally, I would like to pay tribute to the family of Surjit Singh Chhokar, and to Aamer Anwar, their solicitor, whosetireless activism has done much to ensure that the case was kept in the public eye, that public bodies were made to account for their actions, and that ultimately the killer of Surjit Singh Chhokar was convicted.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-32767870650700136762015-09-07T09:53:00.001+01:002015-09-07T09:53:29.470+01:00On Making the Modern Criminal Law<a href="http://4.bp.blogspot.com/--57WQLDHHw0/Ve1PZYEN72I/AAAAAAAAAFU/BmIMpgPx_5w/s1600/9780199568642_140.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="http://4.bp.blogspot.com/--57WQLDHHw0/Ve1PZYEN72I/AAAAAAAAAFU/BmIMpgPx_5w/s200/9780199568642_140.jpg" width="132" /></a>The blog has been dormant for a long time, and this is because I have been working on a larger project - finishing a long book about the development of the modern criminal law. I am very pleased to say that the manuscript is now complete and with the publishers, and this means that I will now resume posting on a regular basis.<br />
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First a word about the book. It is called <i>Making the Modern Criminal Law. Criminalization and Civil Order</i>, and it will be be published by Oxford University Press in January 2016. (There are more details on the OUP <a href="http://ukcatalogue.oup.com/product/9780199568642.do">website</a>, and you can even pre-order the book). I will be writing more about the book over the coming months as well as covering the usual mixture of topical and historical stories.<br />
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LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-22299817188056777982014-06-15T07:28:00.000+01:002014-06-15T07:28:33.594+01:00On JS Mill and the harm principle<div class="MsoNormal">
<a href="http://www.utilitarianism.com/millphoto.gif" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://www.utilitarianism.com/millphoto.gif" height="200" width="119" /></a><span lang="EN-US">An often overlooked feature of John Stuart
Mill’s famous statement of the ‘harm principle’ is that it refers to the
‘civilised community’: “the only purpose for which power can be rightfully
exercised against any member of a civilised community, against his will, is to
prevent harm to others.” So for Mill the operation of the harm principle is conditional, or at least
dependent, on the existence of the civilized community. </span></div>
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<span lang="EN-US">But what did Mill understand by this term? </span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;">A
useful starting point for understanding this is Mill’s essay on civilization,
published in the London and Westminster Review in 1836.</span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;"> Mill
understood the term ‘civilization’ to have a broad and a narrow sense. The broad
sense was the way in which we might speak of a society as more perfect, as
“happier, nobler, wiser”, as in the civilization of ancient Greece or Rome.</span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;"> The narrow sense was comparative: the term could be used to distinguish a
wealthy and populous nation from savages and barbarians, but in doing so could
also recognize that the progression of civilization might be accompanied by new
miseries or give rise to new kinds of vices.</span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;"> </span></div>
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<span style="font-family: 'Times New Roman', serif; font-size: 12pt;">Focusing on this latter sense Mill argued that the degree of civilization could
be measured by the degree of co-operation in a society: “Wherever, therefore,
we find human beings acting together for common purposes in large bodies, and
enjoying the pleasures of social intercourse, we term them civilized”.</span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;"> Savage society was violent and power could be exercised in an arbitrary way. In
a civilized society security, which he understood as the protection of individual
interests, would depend on the collective arrangement of society, rather than
on individual strength or courage. Indeed for Mill this was the measure of
civilization, as he want on to argue that </span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;">“There is not a more accurate test of the
progress of civilization than the progress of the power of co-operation”</span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;">.</span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;"> Co-operation in his view was something that was learned in the progress of
civilization – the division of labour was, in his phrase, the “great school of
co-operation”. Civilization brought about the diffusion of property and
intelligence throughout society and taught self-control and compromise, the
sacrifice of individual will to a superior purpose.</span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;"> </span></div>
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<span style="font-family: 'Times New Roman', serif; font-size: 12pt;">Why does this matter? Its importance, I think, lies in the sense in which Mill was establishing preconditions. The harm principle does not apply to all, but only to those individuals and those societies which qualify. It must be understood in this sense not as a simple statement about the limits of state power, but in terms of a more complex relation. The operation of the ‘harm principle’ was linked to the division of labour
and the degree of social progress, both in the sense of whether or not it was
appropriate to a particular society or group within that society, and in the
sense that civilization could give rise to new vices or harms. And of course the important questions then becomes those of who is to judge whether you meet the entry criteria for the club of civilization and according to which criteria is this judgment made. </span></div>
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<span style="font-family: Times New Roman, serif;">I have two further comments about this. First, it is clear that this judgment was made on the basis of cultural assumptions about the the superiority (and civilized character) of western societies. So for Mill this justified, in particular the British Empire in the Indian subcontinent and Africa as a civilizing project. Imperial rule could be despotic because the barbarians could not govern themselves</span></div>
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<span style="font-family: Times New Roman, serif;">Second, once you are aware the way this distinction, you will be surprised at how often it is still used even in the present day as a means of justifying non-liberal measures. Rioting is uncivilized behaviour and the police are the the thin blue line which stands between us and the breakdown of civilization - so liberal principle s of law may be suspended. Once you look you will see many examples of this kind, which makes you think about the continuing importance of the idea of civilization.</span></div>
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LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com1tag:blogger.com,1999:blog-525177561452567028.post-55335029942701220902014-04-01T11:41:00.003+01:002014-04-01T11:41:35.092+01:00On proportionality, harm and order<div class="MsoNormal">
<o:p></o:p></div>
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<a href="http://upload.wikimedia.org/wikipedia/commons/thumb/3/3b/Patrick_Colquhoun.jpg/220px-Patrick_Colquhoun.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://upload.wikimedia.org/wikipedia/commons/thumb/3/3b/Patrick_Colquhoun.jpg/220px-Patrick_Colquhoun.jpg" height="200" width="173" /></a></div>
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Patrick Colquhoun (1745-1820) is famous as a penal reformer and one of the founders of the modern police. He began his career as a merchant in Glasgow before moving to London in 1785, becoming a magistrate in the East End of the city - an area that covered the docks. It was his work here that prompted him to write his most famous work, <a href="https://archive.org/details/atreatiseonpoli01colqgoog">A Treatise of the Police of the Metropolis</a>, which was first published in 1796. In this book he argued for a new system of police and criminal law to address the problem of theft from the docks and the welfare of the community more generally. His proposals were adopted and a new river police force established in 1800, that was to become one of the models for the creation of the metropolitan police in 1829.</div>
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The following is quote from his book:</div>
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“It is the triumph of liberty when the criminal laws proportion punishment to the particular nature of the offence … In offences which are considered by the legislature as merely personal and not of the class of public wrongs, the disproportion is extremely shocking. If, for instance, a personal assault is committed of the most cruel, aggravated, and violent nature, the offender is seldom punished in any other manner than by a fine and imprisonment, but if the delinquent steals from his neighbour secretly more than the value of twelve pence, the law dooms him to death” (Colquhoun, Treatise on the Police of the Metropolis 6<sup>th</sup> edn. 1800 pp.30 & 35)</blockquote>
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This is interesting as
comment on eighteenth century criminal law. Most obviously it is a critique of
disproportion in punishment and an argument for reform. The eighteenth century
law is criticised for brutality (that a thief is punished by capital
punishment) and for disproportion (that an aggravated assault is scarcely
punished at all, and certainly not capitally). This fits with the well known
picture of eighteenth century criminal law as
brutal and arbitrary. <o:p></o:p></div>
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<a href="http://webdoc.sub.gwdg.de/edoc/ia/eese/artic27/uboeker/fronti14.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://webdoc.sub.gwdg.de/edoc/ia/eese/artic27/uboeker/fronti14.jpg" height="400" width="223" /></a>But look more closely
and there is something even more interesting going on. First, he is pointing
out that interpersonal violence is not regarded as a public wrong, but
something that can be settled between the parties with, at most, some lesser
form of punishment. This seems alien to our modern understanding where violence
is always a matter of public concern, in some way the archetypal public wrong.
It is perhaps hard for us to imagine a criminal law where violence is not
centrally regarded as a wrong – but that is how eighteenth century lawyers
thought.<o:p></o:p></div>
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Second, it is
implicit in any claim about disproportion that there is some other truer
measure of proportion or the proper relation between things. Here, for
Colquhoun, the proper measure is public wrong in the sense of harm to the community.
The idea of harm in this sense can become for Colquhoun a measure of commensurability
between different types of wrongful conduct, allowing them to be ranked in terms
of seriousness. </div>
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Finally, this is linked into the bigger claim, taken from Montesquieu,
that there is a link between proportion and liberty. The proper order of the criminal
law will secure a broader order. The reform of the criminal law is thus linked to
the refoundation of society.<o:p></o:p></div>
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LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-39405368881472615552014-03-30T16:51:00.000+01:002014-03-30T16:52:07.225+01:00On overcriminalisationWe 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.<br />
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He recalled that Home Office principles relating to restrictive legislation were<br />
(1) ‘Do not, unless forced to do so, make crimes out of things which are not crimes already’;<br />
(2) ‘Do not introduce proscriptive legislation beyond the standard of conduct which will be accepted by the general feeling of the country’;<br />
(3) ‘Do not throw upon the police a burden greater than they can bear’<br />
(from S Petrow, Policing Morals, Oxford 1994, p.42)LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-85629917012375659622014-03-04T21:03:00.002+00:002014-03-04T21:03:55.727+00:00On the Oscar Pistorius trialI expect that we will be hearing a lot about the Oscar Pistorius trial over the coming weeks, but I doubt I will read anything better than <a href="http://www.theguardian.com/world/2014/mar/04/oscar-pistorius-trial-black-stranger-defence">this</a>, by Margie Orford - a perfect explanation of how doctrines like self defence require a context in which they make sense.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-60979378959156864562014-02-28T10:22:00.001+00:002014-02-28T10:22:51.070+00:00On sexual offences<div class="MsoNormal">
The criminal law has always
regulated sexual conduct in some way. However, it has not always been the same
kinds of conduct that have been regulated, or regulated in the same way, in
every society, for the same ends. Even the most cursory historical
survey suggests that there has been considerable diversity in the kinds and
manner of regulation of sexual conduct by the criminal law. This raises questions when we come to think about how sexual offences should be regulated by the criminal law. The tendency in modern thought is to see this as a distinct area of law, to look for an organizing principle or interest that should be protected, and then to try and systematically apply this to the identification and definition of possible offences.<o:p></o:p></div>
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-GB; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;"><br /></span>
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-GB; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">One immediately striking feature of the law in the area of sexual offences is that the
idea of a distinct body of sexual offences is relatively novel. By this I mean that
the idea of sexual offences as a distinct sub-field of the criminal law,
organised around a the protection of a distinct interest or wrong or according
to a central governing principle, is a fairly recent development in the
criminal law. The term sexual offences was not used in any legislation in the
UK until 1956, and not in the US until the Model Penal Code in 1962, and, while occasionally used as a descriptive term in treatises before this date,
it was little more than a usage of convenience, a way of describing a sub-category of offences against the
person. It
was not until the 1970s that the idea of sexual offences began to change from
being a descriptive grouping to something that reflected an underlying
organizing principle - that of the protection of sexual autonomy. </span><br />
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-GB; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;"><br /></span>
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-GB; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">This led to some notable instances of
decriminalization of consensual sexual conduct seen as inconsistent with the
idea of sexual autonomy - notably the decriminalisation of homosexual conduct - and this is usually seen as the major development in this area. However, arguably the larger impact has been in terms of <i>increased</i> criminalization, as the
recognition of this distinct interest in sexual autonomy has led to the identification of a
growing range of ways that this can be infringed or interfered with. Recent legislation on sexual offences in the UK has thus criminalized voyeurism, sexual grooming of children, 'sexting', sexual interference with a corpse, possession of extreme pornography, sex with trafficked women and many more. The point here is less that of whether or not these should be crimes (many of them already were, but were not seen as sexual crimes), than to ask the question of how it is that they come to be classified as sexual offences - and more broadly to ask whether the recognition of the category might not have an expansionary logic.</span><br />
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-GB; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;"><br /></span>
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-GB; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">This suggests that before we can take the idea of a category of sexual offences for granted and think about how it is best organised or regulated, it is necessary first to ask about how it is that </span>certain behaviors been grouped together under the rubric of sexual offences, about the kinds of connection or thematic unity that makes this grouping possible, and about the consequences for criminalization of thinking in categories of this kind.<br />
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LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-76418171476707724162014-01-29T12:35:00.000+00:002014-01-29T15:49:04.940+00:00On theft and rubbishThis <a href="http://www.theguardian.com/uk-news/2014/jan/28/three-charged-vagrancy-act-food-skip-iceland">story</a>, reported in the Guardian this morning, raises some interesting issues. According to the report, three men were taking items from a rubbish bin behind a supermarket to a value of £33. They had climbed over a wall to get to the bins and were arrested as they left the area. Initially they were apparently to have been charged with burglary, but now are being charged under the Vagrancy Act 1824.<br />
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It is easy to see why burglary might not have been an attractive charge here. The offence of burglary is defined in the <a href="http://www.legislation.gov.uk/ukpga/1968/60/section/9">Theft Act 1968 s.9</a>. Basically it requires entering any building or part of any building with intent to steal (or commit other crimes identified in s.9 subsection 2). Climbing a wall to an enclosed back yard would satisfy the first part of this definition; the problem would be with proving an intent to steal. There are two issues here. First, the prosecution would have to prove that <a href="http://www.legislation.gov.uk/ukpga/1968/60/section/5">property belonging to another</a> had been taken (s.5), and then they would have to prove that it had been done with a <a href="http://www.legislation.gov.uk/ukpga/1968/60/section/2">dishonest intention</a> (s.2).<br />
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The problem with the first of these is that it can clearly be argued that property which has been thrown out no longer belongs to anyone - or that the fact that it is in a bin is at least prima facie evidence of an intention to discard the property. So the prosecution would have to prove that the food was under the possession or control of the owner. If the food had been contained in streetside bins that were accessible to the public this would surely be impossible; if they were in an enclosed yard then possession or control might be easier to establish as they would not pass out the the supermarket's control until the contents of the bins were physically removed.<br />
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However, even if this test were met, it would be difficult to establish dishonesty. It is just conceivable that the prosecution could satisfy the legal test - set out in s.2 of the Act and in the case of Ghosh). This is basically a matter of whether you understood that it would be dishonest or wrong by common standards, even if you believed your condct was right or justifiable. However, if the food were removed because of hunger, or even as a protest against supermarket practices of discarding food which could still be consumed, this would at the very least require the court to engage in a discussion of the legitimacy of such practices and the justifiability of the motives of the defendants. And if went to a jury, as would probably happen, then there is authority that dishonesty is a matter of community standards and it is quite possible that a jury would be willing to acquit.<br />
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So we can see why burglary would be difficult to prove. But the Vagrancy Act 1824? The long title of the Act gives a flavour or its style and scope:<br />
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An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England</blockquote>
Most of the Act has now been repealed. It was notorious in the 1970s and 1980s as the basis for the so-called 'sus laws' - powers to stop and search which were used disproportionately against the black community. Remaining powers include that of the Crown Court to commit any "incorrigible rogue" to prison (s.10), and a general power under s.3 to imprison chapmen, pedlars, prostitutes, beggars and others deemed idle and disorderly persons. (I'm not making this up - you can read it <a href="http://www.legislation.gov.uk/ukpga/Geo4/5/83/section/3">here</a>).<br />
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It would appear that the charge would be under s.4 of the Act. This is basically a long list of <a href="http://www.legislation.gov.uk/ukpga/Geo4/5/83/section/4">undesirable conduct</a>, but includes the phrase "<span style="background-color: white; line-height: 18px; text-align: justify;"><span style="font-family: inherit;">every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose" (a form of criminal trespass). An offender will be deemed a rogue and a vagabond and may be committed to a house of correction for up to 3 months. </span></span><br />
<span style="background-color: white; line-height: 18px; text-align: justify;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: white; line-height: 18px; text-align: justify;"><span style="font-family: inherit;">Leaving aside the question of whether there are any houses of correction anymore (we call them prisons these days), this is all very bizarre. The Act is nearly 200 years old, and nothing about it suggests that it is appropriate to our times. If the problem is with the unauthorised entering of the yard then this should either be recriminalised as a specific offence, or probably more appropriately deal with by non-criminal means - speaking to the offenders, or making discarded food available in some other place or giving it to food banks. This is a disproportionate response and it is hard to what what public interest there might be in prosecution.</span></span><br />
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LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-88137798037966079122014-01-23T11:42:00.000+00:002014-01-23T11:42:25.876+00:00On the understanding the history of rapeThings have been pretty quiet on the blog recently, for which I apologize. The main reason for this is that I have been busy researching and writing for my book. One of the areas that I have been working on is the history of sexual offences. I will write more about this in due course, but I wanted to write something first about the challenges of working in this area. One reason for this is because attitudes and beliefs about appropriate sexual conduct were manifestly so different from our own and it is hard both to try and understand conduct in this very different context where it may have had different meanings or significance and to disentangle modern reactions to cases from an attempt to understand the beliefs of contemporaries.<br />
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A good way to illustrate this is by looking at one of the cases I have been reading. This is the case of <a href="http://www.oldbaileyonline.org/browse.jsp?id=t17880910-46-off204&div=t17880910-46">Barton Dorrington</a> from 1788. You can read the whole case (it is not long) by following the link to the Old Bailey Online pages, but the brief facts are as follows.<br />
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Dorrington was charged with the rape of Eleanor Masters, a maid servant. In the words of prosecuting counsel, William Garrow, this is what happened next:<br />
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she was sent on Tuesday the 15th of May towards Bow, that was the day of Bow-fair; when she had got some distance, she was overtaken by the prisoner, who told her he had often observed her, was very much in love with her, and had a very great disposition to make her his wife; she went about her business and returned; when she returned, she found the prisoner had been at her master's house and enquired for her, and the fact is, that he did come several times afterwards, and still affected to have the same disposition towards her; he told her that he had been a shoemaker, and was now a limner [illustrator or draftsman], and in short, that he wished to marry her. Gentleman; after a considerable number of times, he came on the 16th of May, when all the rest of the family were from home; this young woman let him in and asked him up stairs into the kitchen; he went up with her, and after they had been there a very short time, he tied her hands and put a handkerchief into her mouth, and accomplished that which was his evident purpose from the beginning.</blockquote>
The case was complicated by two further factors. First, notwithstanding these events, when Dorrington returned to her house on the following Monday she left the house and went with him to a place (perhaps appropriately) called Foul Lane in Borough and stayed with him there for a few days, where she was ravished by him again before she was eventually found by her employer. Second, she was found to have given him a note stating the following:<br />
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"I promise to be married to Barton Dorrington on his demand, or to pay twenty pounds - Eleanor Masters."</blockquote>
Dorrington was found to possess a number of similar notes in similar terms from different women leading Garrow to conclude that he was a serial rapist who made a practice of attacking vulnerable women and using the promise to marry them (which he clearly never intended to keep) as a way of extorting money.<br />
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Masters was the single witness in the case. The first part of her testimony was in response to a series of questions about the attack, where she was repeatedly pressed, in the face of her clear reluctance, to describe the attack in detailed terms "<span style="background-color: white; font-family: serif; font-size: 15px; line-height: 18px;">in order that the jury may judge whether it was a rape or no." The second part then related to the events following when she went with him to Foul Lane because, she alleged, he threatened her. But to my great surprise, as she was questioned about being ravished again, the Court suddenly interjects to state that it is wasting time to go further and the prisoner was acquitted.</span><br />
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How should we respond to this case? My initial reaction is one of puzzlement, even upset. Master's story seems credible and it is hard to see why it was not regarded by the court of providing even<i> prima facie</i> evidence of rape. The cross-examination is upsetting, as the demand of the law for chastity and good character on the part of the victim (seemingly personified by Masters) comes into conflict with the need to describe the rape in sufficiently graphic terms to constitute proof. And in other respects the scenario just seems puzzling: why would she have accompanied her alleged attacker after the attack? Why would she have seemingly acquiesced in the demand to marry a man she had met only a day before?<br />
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And then, there is that strange note. It seems comprehensible that Dorrington might have said, as Masters testifies, that at the conclusion of the attack he had held out the offer to marry her if she said nothing to anyone. This sort of conduct seems consistent with attackers or abusers in our own time who use threats or promises to secure the silence of their victims. But then why would she have signed a piece of paper promising to marry him "on his demand" or to pay him the substantial sum of 20l - a sum of between 2 and 30,000 pounds in <a href="http://www.measuringworth.com/ukcompare/relativevalue.php">today's</a> money) if she did not?<br />
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<br />
So what to make of it? One reaction might be that this exemplifies the injustice to women. This was a patriarchal system. Female servants, as single women away from their families, were vulnerable to their masters and were also easily preyed on by sexual predators such as Dorrington. She was victimized - once by the rapist and again by the courts and legal system which did not recognize her claim. This is clearly correct, but is it enough? This approach would see the history of rape as the failure to recognize justice or equality judged from our contemporary perspective, and the problem with this then it is hard to attempt to see what is going on except in these terms. Why was the case dismissed? What was the meaning of Master's conduct? Did she really believe in some way in the promise of marriage?<br />
<br />
A second kind of reading of this case has seen it as an example of the attitudes of the courts to malicious prosecution. This approach argues that eighteenth century criminal law was dominated by the fear of false of malicious accusation, as exemplified by the comment of Sir Matthew Hale, that rape is:<br />
<blockquote class="tr_bq">
an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.</blockquote>
On this view the suspicion was that prosecutrixes would make false claims to hide sexual indiscretions, or to try and force reluctant men into marriage - or simply out of malice. The suggestion here is that, in cases such as this, the court's fear of the false accusation distorted their view of the facts. Again, there is some suggestion of this in the statement by Garrow near the start of his speech when he states (following Hale) that charges are easily made, but his approach is balanced and it does not seem that the case can be reduced to this alone.<br />
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<br />
There are other factors to take into account, and though I am not sure yet that I can weigh the proper significance of each of these, I think a fuller reading of cases such as this would have to take them into account. First, rape was a capital offence at the time, and life was not so cheap that the courts would convict in the absence of clear evidence - and it is precisely the ambiguities and doubts, particularly relating to Masters' conduct in the days following the attack which seems to have given rise to problems for the court. Because it was capital, the law of the time required the woman to resist to the point that her life was in danger (a life for a life), and though attitudes were in the process of changing the courts would not convict where there was apparently consensual sex. This is not to defend these attitudes, but how we should understand the court.<br />
<br />
Second, it seems clear that the spoiling of good character was central to the conception of the wrong. Although, notionally, the protection of the law extended to all women, legal commentators viewed the taking of the woman's honour, her good character, as the core of the offence - leading to many lengthy discussions of whether a prostitute or an unchaste woman might be raped. But crucial to this - and at odds with our own understanding of the crime - is that while sexual behaviour was part of the crime, the wrong was not defined by sexual behaviour alone. This was an element in a broader understanding which encompassed social status and character and their place in the social order. Thus, while Masters' apparently good sexual character was probably central to the prosecution being brought in the first place, she fatally undermined her own case when she admitted to sexual conduct which put her character in question.<br />
<br />
And this begs the question of why she went with him in the first place when she seems to have had a reasonably protective master, who sought her out when she left and most likely funded the prosecution. It seems clear after all, that the note was not enforceable and she had already told the details of the first attack to her mistress. This is where I think it is hardest to understand what is going on, but I think her conduct must be understood in relation to contemporary understandings of seduction and marriage - and certainly the court seems to think that this might have been characterised as seduction gone wrong. Maybe she did believe the promise of marriage and maybe that was part of a broader social understanding about sex. There is evidence in the eighteenth century of what we might call 'bargaining in the shadow of the law' - sexual conduct on the promise of marriage and men marrying their accusers. Such conduct seems incomprehensible to us, but perhaps makes sense in a world where sex was valued differently, where there was less connection between romantic love and sex, where courtship opportunities were severely limited for domestic servants and so on.<br />
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<br />
Unfortunately we don't know what happened to the protagonists of the case. The best for Eleanor Masters might be that she was kept in service by her family in spite of her loss of character and was perhaps able to make a good marriage; the worst that she was thrown out because of her loose morals. In spite of his acquittal, the Court was moved to warn Dorrington about his conduct in no uncertain terms:<br />
<blockquote class="tr_bq">
<span style="background-color: white; font-family: serif; font-size: 15px; line-height: 18px;">The seduction of these young women, under pretence of marrying, is not a crime of much less criminality than that which you have been tried for; and you will some time or another get your neck into the halter, if you do not leave off these practices</span></blockquote>
We do not know if he heeded the warning, though certainly there is no further record of him in the Old Bailey Session papers. We can only hope that he did.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com1tag:blogger.com,1999:blog-525177561452567028.post-28231677478910876762014-01-06T14:56:00.000+00:002014-01-06T14:56:11.292+00:00On the passing of the common law of sexual offences<div class="MsoPlainText">
A death notice:</div>
<div class="MsoPlainText">
<br /></div>
<div class="MsoPlainText">
The Sexual Offences (Scotland) Act 2009 (Commencement No
2) Order 2013 <a href="http://www.legislation.gov.uk/ssi/2013/341/made">www.legislation.gov.uk/ssi/2013/341/made</a></div>
<div class="MsoPlainText">
<br /></div>
<br />
<div class="MsoPlainText">
Peacefully in their sleep, at St Andrew's House in
Edinburgh on 16 December 2013, the common law offences of rape, clandestine
injury to women, lewd, indecent or libidinous practice or behaviour and sodomy.</div>
<div class="MsoPlainText">
<br /></div>
<div class="MsoPlainText">
[Thanks to James Chalmers]</div>
LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-91791587068648331062013-12-20T16:26:00.000+00:002013-12-20T16:26:22.071+00:00On assassinationI am late in posting this, as it was my intention to publish it for the 50th anniversary of the killing of John F Kennedy last month - and so my apologies for being out of step. This, as might be expected, prompted the usual round up of stories and theories about the assassination: was there another shooter? was the CIA/the mob involved? was the Warren Commission a cover up? I don't want to get into these here, but I am interested in the question of assassination and political violence and legal responses to these.<br />
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When I use the term assassination here I mean it in quite a narrow sense. It is not just any killing, but specifically the killing of political or public figures, with a political motive. This kind of killing has a modern kind of significance. There have, of course, been politically motivated killings throughout history, and debates and theorising about when the use of violence was justified. But up to the modern period this was usually known as tyrannicide - the killing of a tyrant - as it was referred to in classical Greek and Roman political theory. Other politically motivated killings - the removal of an opponent to protect a sovereign's position or to open the path to power (think Macbeth) - could also be referred to as assassination, but the term was not widely used. The idea of assassination as politically motivated killing took on a special significance in the modern age, not only because it became more widespread, but that it was a consequence of the new form of democratic politics. The democratization of power paradoxically democratized political killing as those frustrated by existing rulers and political systems resorted to violence.<br />
<br />
<a href="http://static.guim.co.uk/sys-images/Books/Pix/covers/2012/10/16/1350392570880/Age-of-Assassins-A-History-o.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://static.guim.co.uk/sys-images/Books/Pix/covers/2012/10/16/1350392570880/Age-of-Assassins-A-History-o.jpg" /></a>This, broadly, is the theme of a new book <a href="http://www.faber.co.uk/catalog/age-of-assassins/9780571220458">Age of Assassins</a> by Michael Newton. This presents itself as a history of assassination between the assassination of Lincoln by John Wilkes Booth (1865) and the attempted assassination of Ronald Reagan by John Hinckley in 1981. (It is pleasing to see that Newton gives space to the relation between the <a href="http://obliqueintent.blogspot.ca/2012/02/on-assassination-and-criminal-law.html">development of the defence of insanity and assassination</a> though mainly in Victorian England). He argues that the nineteenth century killers were typically ordinary people driven by a (misplaced) desire to make the world better. By contrast as the book moves into the 1960s the assassins of the Kennedy brothers, of Martin Luther King, and of Malcolm X were typically loners, with few clear political motivations and often driven by a desire for celebrity. The argument of the book then paints a slightly odd picture of the decline of the American assassination.<br />
<br />
The argument clearly works best as a history of political assassination in the USA. He shows that Lincoln declined protection because assassination was seen as un-American, a form of political violence that was alien to the inclusive new republic. And this can be contrasted with the killings that symbolised the 1960s where assassination has become politically meaningless, an act which which seeks to give meaning to an individual life. But the book is broader than this, covering European anarchism in the 1850s, the Phoenix Park killings by Irish nationalists in Dublin in 1882, the attempted assassination of Hitler in 1944 and many more. While these are fascinating, it is not always clear how they fit into the story. Occasionally, it is true that the European context is essential to understanding American developments, as with the Russian anarchists who moved to the US and were involved in the attempted murder of the industrialist Henry Frick and the assassination of President McKinley, but in other places their inclusion seems more random and actually might seem to contradict the main argument. As Newton himself admits, political assassination is still resorted to routinely in other parts of the world - think of the political violence in Germany, Italy and the UK in the 1970s or the killing of Olaf Palme for instance - which suggests that a history of political assassination in Europe would look very different. And, of course, there is also the question of state sponsored assassination - notably of Osama bin Laden by the USA - which if included might put a very different spin on the argument.<br />
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There are also some interesting criminal law questions raised by the argument. One of the key thoughts that emerges here is the difference between terrorism and assassination. While assassination was often carried out by means of bombs (especially in the nineteenth century) and bystanders could be killed, the aim was not that of terrifying the public or creating a mood of political uncertainty by an extreme act of violence. This suggests that not all political violence is terrorism, and conversely, that it might be appropriate to recognize assassination as a distinct form of murder (as terrorism is a distinct form of violence because of its motivation). This would be because is uniquely serious or because the motivation attending the crime should be recognized in the crime definition. This might seem like an odd suggestion, but it seems clear that not all murders are the same and that the degree or seriousness of the act might be recognized in the definition.<br />
<br />LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-20112002380415695252013-12-11T14:42:00.002+00:002013-12-11T14:42:40.477+00:00On Mary Reid or Timney<a href="http://2.bp.blogspot.com/-voPLWfg4VdI/UkSLPkJMLmI/AAAAAAAAAGU/7RczUxb51Nc/s1600/MT+front+cover.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="320" src="http://2.bp.blogspot.com/-voPLWfg4VdI/UkSLPkJMLmI/AAAAAAAAAGU/7RczUxb51Nc/s320/MT+front+cover.jpg" width="219" /></a>I wrote a short post on this case earlier in the year: Mary Timney was the last woman to be publicly executed in Scotland, in Dumfries in 1862. I have now had the benefit of reading the <a href="http://jaynebaldwinblethers.blogspot.co.uk/p/mary-timney-road-to-gallows.html">book </a>on the case by Jayne Baldwin that I mentioned in that post.<br />
<br />
The story is beautifully told and presents a great deal of new information drawn from newspapers and the court and other official records. There are a number of images of letters, of some of the participants and maps and so on. Only a small part of the book is given over the murder and the trial, which is perhaps unsurprising as the case was fairly clear. The bulk of the book is the story of the efforts to get the sentence commuted and the preparations for the execution itself, and this is grippingly told even if we know the outcome in advance. There is also fascinating discussion of the involvement of local MP William Ewart in the campaign on Mary's behalf and against public executions - which came to fruition in 1868.<br />
<br />
This is valuable contribution to our understanding of crime and capital punishment in mid-nineteenth century Scotland. I hesitate to say that it would make an excellent Christmas present - it would, but perhaps only for those with an appetite for the grim for the story it tells is not happy one.<br />
<br />
<br />LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-37660534099741256982013-11-12T17:24:00.002+00:002013-11-12T17:24:44.582+00:00On the misinterpretation of the Sexual Offences (S) Act 2009: HM Adv v MutebiMuch has been made of the the reform of the law of sexual offences in Scotland. The passing of the Sexual Offences (S) Act 2009 was a historic moment, replacing the common law of sexual offences with a new statutory code. The law was being modernised, replacing outdated and gendered conceptions of rape with a new law that placed the protection of sexual autonomy at its core. And this new focus was to be reflected in a new approach to the concept of consent which aimed at altering the balance of the trial.<br />
<br />
If the old law was often criticised for allowing the complainer to be put on trial over whether or not she had consented, the new law sought to address this in two ways. First, it aimed to take the question of consent out of consideration in certain cases (the <a href="http://www.legislation.gov.uk/asp/2009/9/section/13">statutory indicators</a> in s.13): if it was proved that a complainer was incapable because of drugs or alcohol, or that violence had been used and so on, then there could be no consent as a matter of law. Second, if the accused claimed that they had a reasonable belief that the complainer was consenting, then it was necessary for the accused to show whether<br />
<blockquote class="tr_bq">
<span style="background-color: white; font-family: arial, helvetica, verdana, sans-serif; font-size: 12px; line-height: 18px; text-align: justify;">whether they took any steps to ascertain whether there was consent ...; and if so, to what those steps were. (s.16)</span></blockquote>
The point of this was that it was for the accused to show what steps they took, rather than for a complainer to have to show that she did not consent.<br />
<br />
Of course the law was not perfect. The drafting of many sections is clumsy, but it seemed that the central purpose was clear enough. The law was duly passed in 2009, not coming into force until nearly a year later, so as to allow police, prosecutors and judiciary to be trained in the implementation of the new law. However, with the publication of the judgement of one of the first cases to reach the Appeal Court there are now grounds for suspecting that the judiciary have failed to grasp the structure of the new law and that this may actually undercut its aims.<br />
<br />
The case is <a href="http://www.scotcourts.gov.uk/opinions/2013HCJAC142.html">HM Adv v Mutebi</a>. I wrote about <a href="http://obliqueintent.blogspot.ca/2013/05/on-meaning-of-consent-in-sexual.html">this</a> rather speculatively at the time of the decision, on the basis of press reports, bu now we can see more clearly how it was argued. The case concerned an appeal against conviction by Mutebi who claimed that woman he had sex with had consented (although she was very drunk) and that when she had regained consciousness during the sexual intercourse and had withdrawn consent, that he had in fact withdrawn and left her flat.<br />
<br />
There is already something strange about this in that in a situation where the complainer was clearly so drunk that she could not remember whether she had consented or not to sex with a stranger, who then stole her phone and money when he left her flat, was not treated as falling within the scope of s.13 (the jury apparently having decided that she might have consented and deleting the relevant part of the indictment). The case thus seems to proceed on the basis that it was likely that she would have consented to have sex with a stranger who she met on the street while very drunk, rather than regarding this as something out of the ordinary or improbable.<br />
<br />
However, if we leave this aside I am interested here in how the Appeal Court approached the question of the application of the provisions of the 2009 Act. What is bizarre about this is that after setting out the relevant provisions of the Act, the Court then proceeded to argue as though the pre-existing common law was still in force. Thus rather than focusing on the question of her physical state and the steps that Mutebi might have taken to ascertain whether or not she was consenting, the Court discussed the evidence of knowledge or recklessness as mens rea of rape, and whether there was evidence to corroborate this.<br />
<br />
It should not need stating, but this is clearly not the new law. The 'mens rea' of the offence is that the accused should penetrate the complainer with his penis "without any reasonable belief that B (the complainer) consents". And the definition of how reasonable belief should be approached is now set out in s.16 (above). This does not remove the need for corroboration, which the court discusses at length, but it should be clear that it reframes the way his should be approached.<br />
<br />
It is worrying that the Court should have erred on such a simple matter as the interpretation of the new law; but as I suggested above, this is an even greater concern when it threatens to undermine the whole basis of the new law.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0tag:blogger.com,1999:blog-525177561452567028.post-79865227580825343352013-11-04T11:17:00.001+00:002013-11-04T11:17:45.653+00:00On witnesses and veilsThe question of whether or not women wearing veils should be permitted to testify has been rumbling on for some time in Britain. Yesterday we were treated to the views of <a href="http://www.theguardian.com/law/2013/nov/03/ban-court-evidence-veil-ken-clarke">Ken Clarke</a>, Minister without Portfolio in the Coalition government, and former Justice Secretary and criminal barrister. According to Clarke, a proper trial is impossible if a witness is wearing "a kind of bag". He went on<br />
<blockquote class="tr_bq">
<span style="background-color: white; color: #333333; font-size: 14px; line-height: 18px;"><span style="font-family: inherit;">I think the judge and jury have got to see the face of the witness [to] judge their demeanour and decide for themselves whether they are going to rely on this evidence ... It may be you have to make some special arrangements, it may be they'll have to be some screening from the general public, but I actually think it undermines a trial.</span></span></blockquote>
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="http://blogs.telegraph.co.uk/news/files/2012/05/Kenneth-Clarke.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="125" src="http://blogs.telegraph.co.uk/news/files/2012/05/Kenneth-Clarke.jpg" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Ken Clarke, in costume</td></tr>
</tbody></table>
Leaving aside his cultural insensitivity (a kind of bag?), it is worth pausing for a moment on the claim which underlies these views. It is the following: that judges and juries can, if they can see a witnesses face, tell whether or not they are lying. If this is correct, then it would appear that there is some scientific basis for this position, and that the law, backed by science, would be justified in asserting its authority over religious and cultural practices which hindered or obstructed the discovery of truth.<br />
<br />
<a href="http://upload.wikimedia.org/wikipedia/commons/a/aa/Hugo_M%C3%BCnsterberg_Psychologe.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="http://upload.wikimedia.org/wikipedia/commons/a/aa/Hugo_M%C3%BCnsterberg_Psychologe.jpg" width="129" /></a>Unfortunately there is little <a href="http://psychcentral.com/archives/deception.htm">psychological evidence</a> to support these claims. Indeed, studies which have been carried out in this area suggest that professionals (police, immigration officers) are no better at detecting lies than the ordinary person, and that the ordinary person does no better than 50:50. (The suggestion is that poker players may be the best at detecting lies...). There is, of course, a huge amount of folk belief in this area, a lot which can be traced back to ancient superstitions about guilt or unreliability revealing itself through signs: sweating, failure to make contact, nervous tics and so on. These are entertainingly discussed in a famous work by Hugo Munsterberg, one of the pioneers of criminal psychology, called <a href="http://psychclassics.yorku.ca/Munster/Witness/">On the Witness Stand</a> (1908). But while claiming the existence of these 'tells', even Munsterberg acknowledged that further psychological research was needed in order to learn properly how to detect them.<br />
<br />
In the continuing absence of convincing findings, the claims of lawyers (and politicians) as to the lie detecting powers of judges and juries are no more than folk beliefs. Video or audio evidence is just as likely to produce the same outcomes, and from a scientific perspective there may even be no good reason why we should not rely on written evidence. And whether witnesses given evidence from behind screens or veils, or from a different room should not really have much impact on the ability of the jury to detect whether they are lying or telling the truth.<br />
<br />
<a href="http://upload.wikimedia.org/wikipedia/commons/5/5f/Advokat,_Engelsk_advokatdr%C3%A4kt,_Nordisk_familjebok.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="http://upload.wikimedia.org/wikipedia/commons/5/5f/Advokat,_Engelsk_advokatdr%C3%A4kt,_Nordisk_familjebok.png" width="140" /></a>So what is really going on here. A more plausible way of understanding what is at stake is in terms of confrontation. This is the belief that the trial is at base about bringing the main protagonists together and that the truth will emerge from a series of confrontations: between the accused and their accusers, the lawyer and the witness, between lawyer for the prosecution and defence. This is bolstered by the mythology of the adversarial trial: stories of brilliant barristers breaking down witnesses, of accused persons cracking under sustained cross examination, of the <i>coup de theatre</i> that undermines a key witness. This is the British way of justice, but the audience is less the jury than a broader public who are to be convinced of the reliability of our institutions of justice and those who work in them.<br />
<br />
And this is the point: what is really at stake is a clash between the sense of the trial as an event and something which might undermine this. The witness in a veil is seen as undermining this without good reason (though of course there are many excellent reasons for respecting cultural difference). It really has nothing to do with truth, and it would be better for all if this were recognised from the start.LFhttp://www.blogger.com/profile/12340626435468328151noreply@blogger.com0