The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: criminal law

The lack of empathy

I’m currently working on a criminal law essay which was:

  • started early enough not to be a panic (it’s worth doing this), and
  • on a question which encompasses most of everything (I was thinking that the sermon at mass yesterday was relevant)

One of the unexpected resources I’ve come across, which I won’t directly cite, was an Independent article on empathy.

The problem with “root of all evil” arguments is that it’s important to work out if the person speaking really has stumbled upon the root of all evil or if they are just a man who only has a hammer. I can’t quite make up my mind about Simon Baron-Cohen’s (cousin to that Baron-Cohen) contention that empathy (and the lack of empathy) determines basically all problems. People who put themselves in other peoples’ shoes don’t hurt other people.

I think that’s partly obvious but partly things are more complicated than that. I can put myself in others’ shoes reasonably well but I still hurt people (more than I’d like, frankly) so I don’t think I can put it down to being exposed to too much testosterone in the womb. Empathy is a tricky thing to make into a characteristic and I have a feeling that empathy is something you do rather than something you just have.

I have a well developed fear of heights and every time I climb somewhere high I can feel myself working out what it would take to fall off. In fact the way that I can climb anything is by obeying a mental “precariousness limit” and I find that sounds sane enough that I suspect everyone stops climbing when it feels too precarious. I wonder if I do a similar, unconscious, thinking process for empathy — I don’t pull the legs off flies because I’ve worked out that must hurt.

Disappointingly the article mainly focuses on the newsworthy examples – psychopaths – rather than the interesting cases – overly empathetic people – and it’s a tale of slavery and Nazis for the most part. I’d like to see why deeply empathetic people (level six empathy) can still do bad things.

H/T: Rock, Paper, Shotgun

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Adult or child

Criminal Law is a touchy area of law. It’s the part that makes the news and appears in drama —watchers of the BBC’s newest legal drama, Silk, will have noticed that she is still to handle a breach of contract case.

It’s the part of law that regular people have the most opinion about and that’s not always a good thing.

The Guardian today reports that a 12-year-old boy in the US is accused of the murder of his parents. The particular facts are typically nasty (two victims shot dead with two survivors: one stabbed and also shot and the other slashed) but the unusual question of law is how he should be tried: as an adult or a child.

He’s twelve. It really should be very easy to work this one out. The question is a bizarre legal fiction that I’ve never understood — it turns out you can define people, inherently counterfactually, as older than they actually are so that you can do things to them.

The problem (however it is presented) is the difference in sanction that the legal system gives to the two groups. Adult criminals get harsher penalties than child criminals and as a species we don’t particularly like to see criminals facing reduced penalties — you only have to look at the persistent calls for hanging to brought back to the UK to see that. Of course at this point in the process we don’t even know if he did it yet so it’s not appropriate to measure his cell anyway.

However there is no benefit in drawing a distinction between children and adults in the legal system if we get to choose to bend reality and choose which one they are. Prosecutorial discretion should not stretch that far. The reality is that the accused in this case is twelve years old. He’s a kid and there’s nothing we can do to change that.

What more is there to decide?

H/T: The Guardian

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Shoplifting contractors

Shoplifting is a big problem for shops and no one can really agree on the proper way to deal with it. There is a policy in some stores in the US of contractual private sector bag and receipt searches. This is pretty controversial but the idea is that the 4th amendment only restricts governmental searches and if you do it nicely enough you can get everyone to show that they’re paying for everything they’re taking out of the store and nothing gets stolen. I think it puts a weird burden on your customers to provide evidence that they aren’t robbing you. That seems like a business strategy that Alan Sugar shouts at you for on the Apprentice.

Self help

As a matter of theory there is a difficulty in that shoplifting is a crime and therefore it’s not something that you sue over. Many people who have asked the police for help have likely heard the words “it’s a civil matter”, and well, conversely crimes are a police matter.

Complicating this is the lack of eagerness in the police to deal with what is, fundamentally, not that a big deal in the grand scheme of things. Prosecuting shoplifting is not exactly chasing international criminals and it’s natural that officers, particularly the talented and ambitious ones, will want to deal with “proper” criminals. Another problem is the issue of being able to get their stuff back from the police quickly so that they can then re-sell it — for example, perishable food is often stolen.

To get around this some companies have adopted a self help measure by employing private “security firms” to “levy” “fines” to people they “catch” “shoplifting”. I’ve been liberal with the quotes in that last sentence because this is a hugely informal arrangement working on suspicion rather than proof. It seems that they have employed the Child Catcher (one in four cases involve teenagers, mostly under 17) to leap out whenever the gates beep and demand money. It seems incredibly lucrative work.

Are they right?

Probably the poster case for the issue with these searches is Kim Molloy. Molloy is hardly a classic stereotypical shoplifter in that she is a police chief inspector. I can tell you that she, in “an act of forgetfulness rather than dishonesty”, accidentally took a pot of foundation worth £12.72 from a branch of Tesco Express. I am able to say that because that is what the judge said when she was cleared in a criminal trial. The security firm wanted £137.50 from her.

The Guardian does some good coverage of the statistics involved with this practice:

  • In 67% of 300 cases analysed, the goods were worth less than £20, and
  • in 79% of cases they were recovered in store for resale – but
  • the average demand was £147.69 including the costs of “dealing with the incident” as well as the goods stolen.

I’ve already discussed this practice in relation to file-sharing claims and these claims are pretty similar in many ways. These offers are great and even standard opening procedure if you are a hard bitten practising lawyer who can look at threatening claims and not blink. If you are absolutely anyone else they are suitably terrifying. Remember, we are dealing with a situation where there is an average demand about 10x the usual actual loss (and the actual loss is recovered immediately in most cases). That means the main winner looks to be the company that hassles people outside the shop — those “dealing with the incident” fees add up quickly.

Does that sound familiar?

H/T: The Guardian

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Woman dismissed from jury for Facebook postings

There was a short piece in Monday’s Guardian:

Juror shares trial details on Facebook

“A female juror was dismissed from a trial after posting details of the case on Facebook and asking friends whether they thought the defendants were guilty.

The woman went against strict rules forbidding jurors from discussing cases with family and friends by posting details of the sexual assault and child abduction trial on the social networking site.”

I think a number of issues are quite salient here – firstly it’s the seriousness of the case, I don’t like the connections that the two charges conjure up personally and I think it’s pretty horrible if she was posting this. Especially since the regular media would be working with a child protection restriction due to the age of the victim. Secondly it’s the fact that she was asking for other peoples’ opinions on the case. Think about the ramifications of this – for a few, short hours or days there was a poll on Facebook that actually meant something. This is a very unusual state of affairs indeed.

The next issue is the effect that the additional scale of democracy would have had on the legitimacy of that trial – if 12 peers is enough to convict a person of a crime, then what does 100 votes on the matter mean?

While it’s clear that there is no way that the people from Facebook would have had the information required to make any sort of reasoned judgement it’s an interesting thought – benches of 5 judges produce more persuasive case law that judges sitting alone, does this extend to juries too?

Facebook, Jurors and the Veil (Law Actually)

Student Law Review

I dropped by my law school this week on the way to the library and picked up a copy of the current student law magazines while I was there.

The Student Law Review, published by Routledge Cavendish is a publication bordering on the “terrifyingly polished” and I find it to be a very interesting read that I try to pick up whenever I can.

I’ve done a quick and rough digest of the contents of this edition, and it’s a very, very long post so I’ve added it after the break. I will be back later to fact check but right now I’m just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

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