Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Tuesday, 21 February 2012

On assassination and the criminal law

It is possible to imagine alternative histories of the criminal law. The conventional, or official, history sees the development of doctrine as the unfolding of reason, played out through leading cases in which judges discuss the underlying justifications for the rules, inconsistencies are ironed out, and the law is set on an ever more rational footing. To take one example, the history of the modern law relating to the defence of insanity is seen in terms of the gradual clarification of the defence from its early origins in the nineteenth century cases of Hadfield and McNaghten, which solidified a modern test (that the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong). This test was then the subject of intense debate throughout the nineteenth and twentieth centuries as lawyers and pyschiatrists fought over the question over whether the test should be a legal one - or should be shaped by medicine as our understandings of mental illness developed.

But change perspective. A curiosity here is that this is an area of the law which has been particularly shaped by political assassination. In the case of Hadfield, a former soldier tried to shoot King George III, firing a pistol at the Royal Box in Drury Lane Theatre, London in May 1800. He was tried for treason, and his counsel, Thomas Erskine, successfully argued that the defence of insanity should be extended to cover Hadfield's situation - apparently brought on by having been repeatedly struck on the head by a sabre at the battle of Tourcoing. The jury acquitted, but the case brought to notice that there was no law covering the situation of the acquitted person who continued to pose danger - and this led to the rapid passing of the Criminal Lunatics Act 1800.

The next significant case, of Daniel McNaghten in 1843 again concerned an attempted assassination. In this case McNaghten attempted to shoot Sir Robert Peel, in fact shooting his secretary, one Edward Drummond. McNaghten, who was from Glasgow, claimed that he had been driven to this act by persecution by Tories in his native city. He was acquitted at his trial, but Queen Victoria was so concerned at the verdict that she wrote to the House of Lords requesting that the judges clarify the test for the insanity defence - leading to the now famous McNaghten Rules.

And the story need not stop here. In 1981 John Hinckley attemped to assassinate the then President of the United States, Ronald Reagan, apparently in an attempt to impress film star Jodie Foster. His acquittal on grounds of insanity led to uproar in certain quarters, with many states rewriting their insanity defence and others even abolishing it altogether. And there may be other cases that I do not know about.

The main point, though, is that political assassinations seem to have had a substantial impact on the formation, widening and subsequent restriction of the defence. The scope of the defence has been vulnerable to particular political pressures - the concern not to encourage assassins by making it too easy to 'get away with' their act, or responding to what is seen as normal or abnormal. In Hadfield's case it was easy to see him as a deluded patriot, who had suffered his injury in service of King and Country, and so the court was quick to extend the defence. But McNaghten acted in a period of greater political unrest, and moreover came from a background (and a part of the country) where political radicalism flourished -  hence the impliction that his act could not be seen as a rational response to his situation can have a certain political impact. And for Hinckley, in spite of his obvious mental illness, the concern was that the defence of insanity allowed him to escape the consequence of his act. And so, from this perspective at least, there is a challenge to the conventional view of the law.

(In his intriguing book Knowing Right From Wrong (1981), Richard Moran researched the background to the McNaghten case, finding that McNaghten's claims of political persecution might not have been entirely unfounded.)


  1. Yes, the link between political assassination and the defence of insanity is quite direct. You are persuasive on the political side, but what weight is to be given to the assassination side. Is there something distnctive to the fact that it is tied to the will to kill the king or president. No doubt Legendre would treat these as paternal figures in his great book on the canadian Le Crime de Caporal Lortie. But I wonder also whether these paternal figures tie the political back into the the juridical via a different route: the defence of insanity as quite direct and iterated connections to criminal doctrines of treason, and from that to the structure of defence more broadly: many of the accused in your examples present their story in the form of self-defence. Perhaps, then, the broader point is to the reverse the direction of your comment: not so much the politicisation of the crimino-legal, but the juridification of the political around the scene of a crime.

    1. The assassination for political perspective is always weak all over the world. This is not new it start with the beginning of the kingdom and go on...

      Criminal Justice Degree

    2. Thanks for the comment, but I am not sure what you mean here when you say the political perspective is weak. The point here is surely that a) 'political' cases like those discussed above, can place a particular pressure on the legal system and might drive the expansion or contraction of certain doctrines, and b) from the other comment above that the political nature of the conduct is contained in some way through the law. So there is not a single political persepctive, and it is not clear in what sense this might be weak as both points raise challenging and important questions about the relation between law and politics.