Terrorism/Crime/Murder - Semantics?

Its everwhere, more power, more "security" measures, more control in our lives and it will not make anything or anybody any safer.

The octogenarian at the labour party conference was a terrorist, apparently - so the papers reported, he was barred re-entry under anti-terrorist laws.

Deane--

I'm sorry to be pedantic, but "motive" is irrelevant in criminal law. "Intent" is critical.

I agree that police and investigative organizations always seem to want more power and authority, and that granting it is almost never a good idea.

Best,

Bob

Bob

I don't find your point pedantic at all. I ought to know better. Precision is important and it's half the point I'm trying to make.

Deane

Being even more pedantic, criminal law requires the concurrent existence of intent (“mens rea”) and action (“actus reus”).

A hypothetical case can illustrate some of the issues. X takes a knife and gets into his car with the firm intention of driving to Y’s house and stabbing Y dead. At this point, no crime has occurred because while mens rea is present, there is no actus reus. Of course, X might change his mind and never go through with his intention.

X goes through with his plan and stabs Y to death. Mens rea and actus reus are both present at the same time and the crime is murder.

X stabs Y but fails to kill him. Mens rea and actus reus are both present and a crime has been committed, but it is not murder; take your pick from any one or more of attempted murder, GBH (grievous bodily harm), ABH (actual bodily harm), assault, etc.

Now for the tricky one: X is driving to Y’s house with the intention of killing him. X accidentally knocks down a pedestrian with his car and kills him. When he gets out of the car, X realises that the person he has knocked down and killed is Y – the very person he was on his way to kill. Is it murder?

Alternatively, one can look to a real-life reported case (R v. Collins) for an example of the problems that can arise on these issues.

Collins was a young adult male who worked as a painter & decorator’s mate. Late one night he was walking home in a highly inebriated state when he decided, as the court report says, that he was “desirous of intimate female company”. The problem was that he was on his own. He recognised the area he was in and remembered there was a house nearby where he had recently done a painting job – and that the owners of the house had an attractive daughter of 18 years or so. Also, he knew where they kept their ladder.

So he went to the house, propped the ladder up to the daughter’s window and climbed up to have a look. He was surprised to see the daughter lying unclothed and asleep on top of her bed. He then climbed down the ladder, removed all of his clothes except, as the Judge was at pains to note in his summation, his socks. He then climbed back up the ladder.

While he was outside the window on the ladder, admittedly unclothed, and presumably contemplating his next move, the daughter woke up. In the dark, she saw what was described as a young man with blond hair, naked and in a state of arousal. She thought it was her boyfriend paying her a romantic visit. Consequently, she got up, invited him in, helped him through the window and … the inevitable ensued.

It was only afterwards that she noticed certain “physical irregularities” and switched on the light – at which point all hell broke loose.

Was a crime committed? If so, what was it?

Dan

Dan

R v Collins - Was it "reported" in the Reports?

Deane

When are they going to start charging politicians with fraud for failing to supply the goods they promised in their election?

quote:

Originally posted by Tarquin Maynard-Portly:
Except he was allowed back in next day.

[pedant] saying he is a Terrorist is actually not the same as saying he was held under Anti Terrorism legislation. His lawyers would love to get their teeth into THAT statement. [/pedant]

True. The labour party soon realised that they had dropped the mother of all clangers. But it gave us a glimpse of the real labour.

So why did the police use anti-terrorism laws against this chap? Clearly he is not a terrorist but why on earth were the police so heavy handed?

quote:

Now for the tricky one: X is driving to Y’s house with the intention of killing him. X accidentally knocks down a pedestrian with his car and kills him. When he gets out of the car, X realises that the person he has knocked down and killed is Y – the very person he was on his way to kill. Is it murder?

if it was accidental it can not be murder

quote:

Alternatively, one can look to a real-life reported case (R v. Collins) for an example of the problems that can arise on these issues.

Collins was a young adult male who worked as a painter & decorator’s mate. Late one night he was walking home in a highly inebriated state when he decided, as the court report says, that he was “desirous of intimate female company”. The problem was that he was on his own. He recognised the area he was in and remembered there was a house nearby where he had recently done a painting job – and that the owners of the house had an attractive daughter of 18 years or so. Also, he knew where they kept their ladder.

So he went to the house, propped the ladder up to the daughter’s window and climbed up to have a look. He was surprised to see the daughter lying unclothed and asleep on top of her bed. He then climbed down the ladder, removed all of his clothes except, as the Judge was at pains to note in his summation, his socks. He then climbed back up the ladder.

While he was outside the window on the ladder, admittedly unclothed, and presumably contemplating his next move, the daughter woke up. In the dark, she saw what was described as a young man with blond hair, naked and in a state of arousal. She thought it was her boyfriend paying her a romantic visit. Consequently, she got up, invited him in, helped him through the window and … the inevitable ensued.

It was only afterwards that she noticed certain “physical irregularities” and switched on the light – at which point all hell broke loose.

Was a crime committed? If so, what was it?

Dan

Possibly rape

On the face of it, almost certainly rape, I would have thought.

As for terrorism - do we need new laws in Western jurisdictions? Are there new things about "terrorism" that are different from other crimes?

Did the legislative reaction of the UK legislature to the troubles with Ireland help with that problem?

Judge Learned Hand had this to say of fashion:

...The pious traditionalism of the law has its roots in a sound conviction of this necessity; it must be content to lag behind the best inspiration of its time until it feels behind it the weight of such general acceptance as will give sanction to its pretension to unquestioned dictation. - The Speech of Justice (1916).

Deane F

Yes, the Collins case was reported. It’s ‘mumble-mumble’ years (i.e. – a lot) since I looked at it and my memory may not be entirely accurate, but I think it is in the All England Law Reports for 1973 or 1974. It’s well worth a read as, unusually for a judgment, it’s quite entertaining and some of the asides from the Judge are fairly amusing.

Nigel is correct when he says that the accidental killing of the intended victim is not murder. The fact is that mens rea and actus reus are not simultaneously present.

It is possible for a crime to occur when one of the two elements is subsequently added while the other is continuing. The leading case on this is R v. Fagin. Here, Fagin was driving his car in Brixton when he was instructed to pull over by a policeman. He complied. The policeman, probably in an excess of pedantic zeal, then instructed him to pull in closer to the kerb. In doing so, Fagin managed to accidentally position one of his front wheels on top of the policeman’s foot. According to the report, the policeman then said “your car is on my foot, please move it” (as if!). At this point, no crime had occurred because there was no intent.

What happened next is that Fagin turned off the car’s engine and removed the keys from the ignition … leaving the wheel on the policeman’s foot. The court held that mens rea was then superimposed on a continuing actus reus and a conviction for assault resulted.

As for the Collins case, both you and Nigel are incorrect. In fact, Collins was not even charged with rape. The problem was the fact that the young lady in question invited him into the house and even helped him through the window. She may have been under a misapprehension as to the identity of the individual but there was clear consent to what then transpired … and no conclusive evidence to suggest that Collins had ever formed the definite intention to commit the offence of rape. For all anyone knew, he may simply have intended to indulge in some rather precarious onanism … until he was invited in.

Collins was charged with burglary. This looks odd until one realises that associating ‘burglary’ exclusively with ‘theft’ is a common misconception. At law, the definition of burglary is the illegal entry onto premises with the intent to commit any one or more of a number of offences – these include not only theft but also criminal damage and sexual assault/rape.

So an important issue (regardless of what intent he had formed) was whether or not he had actually made entry to the premises before he was invited in. While he was on the ladder, he had not yet made entry to the premises but … did the young lady wake up and invite him in before or after he started to climb through the window? He said it happened before and she said it was after. At this point, the judgment seems to descend into the realm of sitcom double-entendres with numerous references to whether or not he had his “leg over” (the window sill) and whether or not he made a “substantial entry” (insert own smutty joke here).

Collins was acquitted on the basis of insufficient evidence to reach a conclusion (‘reasonable doubt’ and all that). The odd part of all this is that had he been caught by a passing policeman standing naked on a ladder outside the premises (and before he was invited in), the chances are very high that he would have been convicted – at least on an ‘attempted’ basis.

One amusing aspect of the case was Collins’ repeated use in testimony of the expression that he “couldn’t believe his luck”. When he found the garage open and the ladder available he “couldn’t believe his luck”. When he saw the young lady lying unclothed on top of the bed, he “couldn’t believe his luck”. When she invited him and willingly participated, he “couldn’t believe his luck”. Rumour has it that when he was acquitted he was heard to remark that he “couldn’t believe his luck”.

If you ever hear a lawyer refer to “Collins’ luck”, you’ll know exactly what he means.

Dan

PS – If you like this sort of thing, then I can recommend some interesting reading. “How to do things with rules” by William Twining & David Miers highlights many of the difficulties in drafting and interpreting rules and laws. The example of the ‘legalistic child’ is fascinating. On a more light-hearted note, A.P. Herbert’s “Uncommon Law” is great fun. These are a series of humorous short stories that point out inconsistencies in the law. For example, if a coast road suffers shallow flooding such that both a car and a flat-bottomed boat can navigate it and the car and boat collide, does one apply the laws of the road or the laws of the sea?

quote:

X stabs Y but fails to kill him. Mens rea and actus reus are both present and a crime has been committed, but it is not murder; take your pick from any one or more of attempted murder, GBH (grievous bodily harm), ABH (actual bodily harm), assault, etc.

If you can show the mens rea of 'an intention to kill' you would have an attempt murder, would you not?

The offence of Rape has now been removed from the list of offences under 9(1)(a) etc of the Theft act...

Re the naked man o/s the bedroom - this could be attempt rape depending upon the mens rea of the defendant, as you described so well.

Another interesting aspect of most law, Deane, is that the act be voluntary... now there is one for discussion...

Made me smile, Dan, re your use of Collins... very well described too.

quote:

It seems to me that, while motive (or intent) is a defining element of crimes in which murder or maiming is done, it shouldn't then, necessarily, define a society's reaction.

Deane


This seemed to be a principal aspect of you original post. I am not 100% sure what you were getting at. Can you clarify?

Cheers

Don

Don

Terrorism isn't unique as a crime, in my view. For instance, to explode a bomb or bombs and kill and maim people is most definitely covered by laws already in place within any jurisdiction a person could care to name. There has been a lot of this sort of crime lately. Many of our legislators say to us that it is necessary that we create new laws to deal with this "problem" of "terrorism". They point to the (criminal) conspiracies that plan these crimes and say that it is necessary that we give up some of the freedoms and latitudes that we enjoy in western democracies if we happen fall under suspicion of "terrorism".

But they do not seem to tell us what characterises "terrorism" as different from the crimes of murder or maiming - and this concerns me deeply.

Deane

Could it be due to the political implications associated with terrorism, Deane?

quote:

Originally posted by andy c:
Could it be due to the political implications associated with terrorism, Deane?

Expand.

quote:

Originally posted by Traveling Dan:
Collins was acquitted on the basis of insufficient evidence to reach a conclusion (‘reasonable doubt’ and all that).

Presumably, there was nothing about the law that would have made it impossible, in principle, for Collins to have been charged with rape, for the jury to have decided that Collins' known actions constituted evidence (beyond reasonable doubt) of mens rea and for Collins therefore to have been found guilty of rape?

On a quick(ish) Google this looks like the citation:

R v Collins [1973] QB 100. I'll get to the University Law Library today and look it up I think.

quote:

Expand.

No, I asked you what you thought? I am suggesting that the currect govn't felt the need to alter legislation to cope due to political ramifications?

What do you think?

andy c!

quote:

But they do not seem to tell us what characterises "terrorism" as different from the crimes of murder or maiming - and this concerns me deeply.

Ok Deane. Now I see where you are comming from. Thanks


I perceive a world of difference between terrorism and murder (and between terrorists and murderers). Consequently I would not have any difficulty in passing differing legislation to

a. deter/prevent these crimes
b. sentance criminals convicted of these crimes



I would also say, that I would treat the "failed" murderer the same way as I would treat a "succesful" murderer and likewise "failed" and "succesful" terrorists.



So, (i hear you say) what do I perceive as a "world of difference"?

I suppose "The Sword of Damacles" is one way of looking at it.

A murder is committed. Done. Finnished with. Over. One person against another.
Historcial revenge.

A terrorist would be "unsuccesful" if all he achieved was a murder. He wants to leave you in perpetual fear. he want you KNOW he will attack again. A small group against a large group. Both historical and future revenge

Of course, the above are grotesque simplifications and generalisations. Plenty of room for exceptions etc

But a start,

and as I say, "a world of difference" which not only justifies, but actually REQUIRES a different response from society.

Cheers

Don

quote:

Originally posted by andy c:
Could it be due to the political implications associated with terrorism, Deane?

andy

Ok, I will draw an inference: if you mean that governments are utterly self-interested when it comes to their reaction to the "terrorist" problems, and that their proposals for new laws are to stop a revolution in its tracks, then I'd be annoyed about it - but not surprised.

Although I have to say, if that is actually what you mean, it's rather an absurd proposition.

I think I am being simple, but you are saying the laws in place at the mo to deal with offences to which this thread relates don't need changing?

Would the govn't of the day not consult with various agencies to compare current with what is needed, then?

If you didn't agree with their decision, would that make it worng?

I think your inference is a bit way out, but understandable - I don't think they'd want to stop a revolution - perhaps they'd just wish to stop losing voters confidence?

I dunno, really. This is somewhat vague as we don't know how well the laws put in place re Ireland actually worked yet, due to disclosure, do we?

Also, because of the recent events in London and the subsequent investigation, perhaps existing laws have been found inadequate?

quote:

Originally posted by Don Atkinson:

A terrorist would be "unsuccesful" if all he achieved was a murder. He wants to leave you in perpetual fear. he want you KNOW he will attack again. A small group against a large group. Both historical and future revenge

and as I say, "a world of difference" which not only justifies, but actually REQUIRES a different response from society.

Don

These are the two parts that worry me (about the law - not your opinion) because I see the ideas that you express in the first paragraph I quoted above as very hard to define for legislative purposes - legislation being a very blunt tool.

The second quoted section is what worries me too - because laws are so easy to create and so difficult to repeal. Each successive piece of legislation defines, for better or worse, an area of activity within society so I think that new laws for new classes of crime should not be rushed into without a discourse between the legislators and those who provide their mandate.

Deane

quote:

Originally posted by andy c:

Would the govn't of the day not consult with various agencies to compare current with what is needed, then?

Do you trust the govenment Andy?

I don't.

The only solid protection I have against tyranny is to doubt every single thing they do.

Sorry, Deane. I was adding more to my post.

Which Govn't don't you trust, the UK one or the NZ one, or both?