Some Uses of Legal Fictions in Criminal Law

© Springer International Publishing Switzerland 2015
Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_17

17. Some Uses of Legal Fictions in Criminal Law

Peter Alldridge 

Department of Law, Queen Mary University of London, Mile End Rd, London, E1 4NS, UK



Peter Alldridge


The essay considers fictions in four areas of criminal law. The area of jury nullification fits most easily into a narrative of fictions as a mechanism for gentle amelioration of undesirable laws (in particular, undesirable penalties). The value of fictions in this narrative depends upon acceptance of the reactivity of the jury as the finger on the contemporary moral pulse. The construction of facts as a bargaining process is easier to accept in the civil field, but can also operate successfully in the criminal law, in which to fail altogether to recognise the possibility of fact construction would be to commit to a worse fiction. The essay contrasts these two against two other uses of fiction in criminal law which ought to be treated with greater scepticism. One is the use of forfeiture deriving its justification from the medieval fiction to the effect that the thing is guilty. This is impossible to justify and the recent growth of forfeiture is to be regretted. Finally, by way of contrast, the essay looks at the use of deeming provisions in criminal proscriptions. Whatever their value elsewhere, they ought not to be countenanced in substantive criminal law.

17.1 Introduction

The criminal law in England arose from the fiction that particular incidents between subjects violate the King’s Peace. It embodies a number of pretences, some necessary (individual agency), some contingent (the defensibility of jury decision-making), some unnecessary (corporate personality), some (perhaps) a consequence of needing fixed numerical limits in various areas,1 and some just plain appalling.2 Particularly since the advent of the human rights jurisdiction,3 the relationship of the criminal law to fictions in a more precise sense has never been quite the symbiotic one which can be claimed for it in other areas.

The essence of every legal fiction and presumtio juris et de jure, even the presumption of innocence […], is the prevalence of purpose and policy over truth.4

In consequence the sorts of metaphor that spring to mind are (if from construction) not so much scaffolding5 as ad hoc repairs or patches.6 This essay will explore areas in which fictions are used in or (in the case of forfeiture) adjacent to the criminal law. The first, jury nullification, covers a range of findings of fact, usually by juries, to avoid either liability or particular penal consequences. Broadly speaking, it fits into the narrative of fictions as means of testing out possible moves towards a better legal structure. If contested criminal litigation is to be ended by a verdict, publicly labelling the offender, and sentence follows from an unreviewable jury verdict, the jury itself is empowered to acquit in the face of the evidence, indicating, perhaps, its disapproval of the rule. Those who like juries will like this. The second, plea bargaining, puts the fact/fiction dichotomy itself very clearly in issue. Here the litigation will not, in general, be contested. The verdict will not be brought on a basis that is demonstrably untrue, but one that is taken as an appropriate public statement of the upper limit of the defendant’s criminality. The third (forfeiture), seizure by the state of property because of its connection to crime, is a practice that might have been expected to disappear, but instead is being multiplied. The original rationale for forfeiture was the fiction that the thing was guilty, and that has attracted withering criticism at least since the eighteenth century. The range of cases to which forfeiture now applies cannot be justified by appeal to a single principle, but is probably a curious legacy of the old fiction. The use of forfeiture needs to be considered critically. The fourth case, by way of a contrast, is not a fiction properly so called, but a deeming expression, that has moved from the law of theft to that of proceeds of crime. The essay will trace the use of the expression “pecuniary advantage” in deeming provisions of the criminal law of property and proceeds of crime. It will show that they have not and could not have worked well, and will suggest that there is no place in criminal law for such out-and-out deeming.

17.2 Jury Nullification

In jury trials in England and Wales we know, where there is a record, what the judge told the jury and what the jury decided. We do not know7 whether the jury decided what it decided because it followed and applied what the judge told them. We can normally assume that if the judge told the jury that where facts a, b, c, d and e were proved beyond reasonable doubt, they should convict, then, if they do convict, that those facts were proved. Where the jury acquits, it will usually be for the absence of one or more of a, b, c, d or e, but might, rarely, be for some other reason. Even if the trial is structured, admissions made and the issue between the parties refined to the point where there is only one issue of fact between them, this can still be the case.

The jury nullification8 power—the power of juries to find facts so as to acquit in the face of the evidence—implies power to install a fiction in any area of substantive, procedural or evidential law. It stands in the way of judges directing guilty verdicts.9 Where successive juries refuse to convict in similar cases, then that might be a reason to legislate. An example that can be given is the unwillingness of juries (qualified by property ownership) in the 1950s to convict of the “barbarous-sounding”10 crime of manslaughter by driving a car. Acquittals led in due course to the instantiation of the offence of causing death by driving dangerously,11 which, for many years, put in place a culture of greater tolerance of killing people with cars than otherwise which has yet fully to be displaced. The same kinds of approaches took place to workplace deaths, where more euphemistically named offences, if any, are prosecuted so as to avoid manslaughter charges.12

The most significant area in which judges and jurors, sometimes with prosecutors and with the active involvement of the legislature, acted together so as to relax a harsh law, was in relation to the death penalty. Fictions were deployed so as to avoid capital punishment. These included benefit of clergy,13 pleading the belly,14 and the insanity defence.15 To some extent they were used by prosecutors and, from the time that they became available,16 defence lawyers, but they were deployed largely by judges and jurors.

17.2.1 Benefit of Clergy17

As part of the Concordat of Avranches (1172), Henry II was purged of any guilt in Becket’s murder, but agreed that the secular courts, with few exceptions (high treason being one of them), had no jurisdiction over the clergy. Proof of clergy-hood quite soon was by a literacy test: defendants demonstrated their clerical status by reading from the Bible. This led to literate lay defendants also claiming the benefit of clergy. In 1351, under Edward III, this loophole was formalised in statute,18 and benefit of clergy was officially extended to all who could read. In 1512, Henry VIII further restricted the benefit of clergy by making certain offences “felonies without benefit of clergy”.19 A statute of 1575 radically changed the effect of the benefit of clergy. It was no longer a bar to jurisdiction, but was pleaded after conviction but before sentencing, and it did not nullify the conviction. It could only be invoked once.20 Defendants who availed themselves of the benefit once were branded on the thumb and not allowed to use it again.21 The benefit was eventually extended to women in 1624,22 although it was not until 1691 that they were given equal privileges with men in this matter. Before 1691, women could plead the benefit of clergy if convicted of theft of goods valued less than 10 shillings, while men could plead clergy for thefts up to 40 shillings.23 In 1706, the reading test was abolished, and the benefit became available to all first-time offenders of lesser felonies.24 An increasing number of seemingly minor property crimes became exempt from the benefit of clergy. Eventually, housebreaking, shoplifting of goods worth more than 5 shillings, and the theft of sheep and cattle all became felonies without benefit of clergy and earned their perpetrators automatic death sentences. Benefit of clergy was finally abolished for commoners in England in 1827.25 In 1841, as a result of a duel, it was shown that peers retained the privilege and then it was removed.26

17.2.2 Fiction of Pregnancy

Less significant, but appealing to popular culture,27 was the rule that pregnant women should not be executed, which led to the fiction that a particular woman defendant was pregnant when she was not. The “jury of matrons” was empanelled to determine whether or not she was pregnant. There appears to have been a common understanding that some women granted the privilege were not, in fact, pregnant. Women granted such reprieves were often subsequently granted pardons or had their sentences commuted to transportation. Even when the original sentences were carried out, women were often executed behind schedule.28 This privilege was finally abolished in 1931, from when pregnant women convicted of capital offences were given life imprisonment.29

17.2.3 Fiction of Insanity

In the years before the Homicide Act 1957 introduced other defences to murder, the only defence available to many defendants who admitted having killed intentionally was that of insanity. Judges and jurors found reasons to treat the defendant as insane within the (narrow) definition in the M’Naghten rules.30 As a result of the nullification power, juries had power to hold a defendant to be guilty but insane, and thus, on a capital charge, not liable to be sentenced to death. Jury findings of this sort did not disappear until capital punishment went.31 During the years 1900–1949, of 3130 people committed for trial for murder, 49 were certified insane before trial, 428 were found insane on arraignment, 798 were found guilty but insane, and of the 1210 convicted and sentenced to death, a further 48 were certified insane after medical enquiry and yet a further 77 were respited and commuted.32 Because we do not know, and might not even be able to tell from the directions to juries, whether these juries held that the defendant was insane within the definition or simply should not be hanged, it is very difficult to generate data beyond the anecdotal,33 but there is a sentiment that accomplices and young defendants were generally more appropriately held to be insane than were perpetrators, and that defendants who used guns, poison, or killed policemen should not be found insane.34 It did not help to be foreign.35 It can be suggested that the findings of jurors in murder trials that defendants were guilty but insane were a means of exerting the pressure that led eventually to the establishment of the Royal Commission on Capital Punishment,36 the defence of diminished responsibility,37 the categories of capital and non-capital murder38 and perhaps even to the abolition of capital punishment itself. After 1965 the outcome of a successful insanity plea was worse than a conviction and the rate of insanity pleas went down almost to zero.39 Of course, the fiction of insanity was not a wholly satisfactory expedient. It presented difficult choices for defendants who were innocent. One could not plausibly run defences of insanity and alibi.

The general response in the literature to these fictions is that they are a good thing, giving the courts a flexibility they wanted but Parliament would not supply.40 As Langbein put it:

The sanction-specific quality of the substantive criminal law is what permitted the jury to exercise a de facto sentencing discretion, since the jury had the power to choose among different offenses for the conduct charged. Suppose, for example, that the defendant were accused of burglary–-:- the indictment alleged that he broke into a house at night and stole five pounds worth of goods. Although the indictment charged burglary, for which the sanction was death, the jury had the power to convict the defendant of a lesser offense. It might (and it often did) return a verdict of “not guilty of burglary, but guilty of the theft.” The effect of this formulation was to spare the defendant from the death penalty, and to consign him to transportation (later imprisonment) for grand larceny. If the jury were extraordinarily concerned to be lenient, it could (but seldom did in such a case) find the defendant guilty of a theft to the value of ten pence, hence mere petty larceny, for which the main sanction was whipping. Thus, the jury in this example could choose among three sentences- death, transportation, or whipping-by manipulating the offense. This mitigation practice was widespread and immensely important. In a famous phrase, Blackstone called it “pious perjury,”41 by which he meant that the jury knowingly returned a false verdict (in our example, theft rather than burglary) in order to reduce the sanction.42

It is difficult to criticise any actions by juries that reduce the incidence of the death penalty. There is, of course, the argument that failure to impose the death penalty where it was mandated was what kept it in force for so long, but we should be sceptical about that. The reasons for the abolition of the death penalty for murder in England and Wales at the time it was abolished have little to do with juries and more to individual agency.43

Hay famously argued that the discretion that is exercised in the death penalty cases is one of the ways in which the exercise of brute power by the ruling class is legitimated.44 Where might jury nullification fall into such an account, or one derived from the account of the Rule of Law in E.P.Thompson’s celebrated passage about the Rule of Law towards the end of Whigs and Hunters,45 and his other writings in the 1970s and 1980s on the jury?46 The answer is that it would be critically important.

Jurors have found, again and again, and at critical moments, according to what is their sense of the rational and just. If their sense of justice has gone one way, and the case another, they have found “against the evidence,”… the English common law rests upon a bargain between the Law and the people: The jury box is where the people come into the court: The judge watches them and the people watch back. A jury is the place where the bargain is struck. The jury attends in judgment, not only upon the accused, but also upon the justice and the humanity of the Law.47

One might be cynical about the composition, competence and commitment of the usual eighteenth (or twenty-first century) jury, and consider Thompson’s view a romanticised one.48 Only recently a jury appeared to be asking permission of a judge to acquit in the face of the evidence and were roundly denounced.49 The advent of the European Convention of Human Rights, which does not insist upon a jury as an element of a fair criminal trial,50 has taken some of the force from the debates of the 1980s about the jury.

17.3 Plea Bargains

Jury nullification fictions require, and were often instigated by, juries. There are other ways of introducing fictions into the criminal justice process. All systems of criminal justice have arrangements for dealing with cases in which some kind of agreement has been made between the prosecutor and the accused.51 There does appear to have been something recognisable as a plea bargain in England even in the eighteenth century,52 yet for many years the courts roundly denied its existence.53 In one of the ground-breaking socio-legal studies in England,54 Baldwin and McConville showed that events around Crown Court trials were only explicable by the inference that some kind of covert deals were being struck. Save in the most exceptional circumstances, R v Turner,55 as underlined and applied in subsequent cases, prohibited the judge from giving any indication of sentence in advance of a guilty plea by the defendant. The Royal Commission on Criminal Justice noted wistfully that:

A significant number of those who now plead guilty at the last minute would be more ready to declare their hand at an earlier stage if they were given a reliable early indication of the maximum sentence that they would face if found guilty.56

Sir Robin Auld’s review of the criminal courts discussed advance indications of sentence. It concluded that subject to a number of specified safeguards, a defendant, through his advocate, should be able to request to be informed of and the judge should be entitled formally to indicate the maximum sentence in the event of a plea of guilty at that stage and the possible sentence on conviction following a trial.57 Auld believed that the ability of the judge to give an indication to a defendant who wished to know the maximum sentence s/he faced would “enable the guilty defendant and those advising him to evaluate the judge’s indication and assess the advantage or otherwise of proceeding with a plea.”58 It would clearly be in the interests of all that s/he be able to undertake a comparison between the sentence on a plea of guilty and a possible sentence on conviction:

He knows and will in any event, be advised by his lawyer that a plea of guilty can attract a lesser sentence and broadly what the possible outcomes are, depending on his plea. So what possible additional pressure, unacceptable or otherwise, can there be in the judge, whom he has requested to tell him where he stands, indicating more precisely the alternatives?59

As noted by Auld, one aspect of the criminal justice system in England and Wales that has always been inconsistent with the idea that pleas should be uninfluenced by considerations as to what their outcome might be is the sentencing discount. Judicial precedent created the one-third discount for guilty-pleas, which was incorporated into criminal statute later.60

Following the guidance published by the Sentencing Guidelines Council in December 2004 on the Reduction in Sentence for Guilty Plea,61 in Goodyear,62 adopting the procedure in Attorney General’s Reference (No. 1 of 2004) and Simpson,63 a five-judge Court of Appeal, presided over by the Lord Chief Justice, was convened to consider whether the Turner rule of practice should be modified, and if so, to what extent. It laid down new guidelines64 which state that normally speaking an indication of sentence should not be given until the basis of the plea has been agreed or the judge has concluded that he or she can properly deal with the case without the need for a trial of the issue. The plea and case management hearing in the Crown Court now specifically requires the judge to seek and be given information first, on whether the defendant has in fact been advised about the credit to be obtained for a guilty plea, and second, what steps had been taken to see whether the case might be resolved without a trial.65

Within this framework there are several techniques of “negotiated diversion.” The idea is obvious: to avoid costly and time-consuming opportunity for adversarial conflict. This recommendation and subsequent legislation66 placed it on a more formal footing. Subject to those imposed by the judges67 the main constraints upon the prosecutor in making deals with defendants are set out in the Attorney-General’s Guidelines on the acceptance of pleas. 68 This requires, amongst other things, attention to transparency, the basis of plea, attention to the interests of victims and to mitigating factors.

Plea bargains and other techniques of diversion are usually arrived at by a process of negotiation, in effect, to agree the facts to be approved by a court and avoid contested litigation. They may result in the reduction of punishment, or the reclassification of the offence. Typically English Law has broad offences with wide sentencing discretions, rather than narrow ones with more closely confined sentencing ranges, so it is more usual for the agreement to bear upon punishment. There are nonetheless some scales of graduated offences. Charges might be reduced, for example, from murder to one or another form of manslaughter, from Section 18 to Section 20 of the Offences against the Person Act 1861, from burglaries or robberies to simple thefts, from car thefts to taking and driving away, from possession of drugs with intent to supply to simple possession and so on.

There is in plea bargains no pre-existing truth against which to oppose a fiction, because there never will be evidence otherwise. The outcome will be negotiated and constructed in the process of the discussions.69 The facts are created, neither fictitious nor abounding in historical verisimilitude. The fiction, if any, will generally be that the facts and the charge presented properly represent the gravitas of the defendant’s wrongdoing in the respect in question. When the defendant is relatively powerless and the adjustment of the facts is, or seems, an act of mercy, that is one sort of fiction, and one with which we may sympathise. When the defendant, or an overseas prosecutor is exerting economic muscle to fix the facts in its favour that is quite another, and it is not so satisfactory. Could Bean J. in BAE Systems have refused to endorse the agreement? In theory, yes, but there were factors of international relations in play.

When, therefore, a judge is asked to approve the outcome of a negotiation the effect of which is to generate a given outcome, on a guilty plea and without a hearing of the evidence, the pressures of caseload, time, public expenditure and even (in the cases to be considered) international relations will affect the outcome. In R v BAE Systems 70 the defendants pleaded guilty to a charge under Section 221 of the Companies Act 2005, that the company had failed to maintain the required accounting records. What had happened was this. On February 5 2010, it was announced on the Serious Fraud Office (SFO) website that in 2010 BAE had reached settlements with U.K. and U.S. authorities and agreed to pay fines totalling $ 400 million to settle the long-running corruption allegations concerning the Tanzanian air traffic control system. BAE Systems Plc admitting it had failed to keep adequate accounting records in relation to a defence contract for the supply of an air traffic control system to the Government of Tanzania.71 So far as concerned proceedings in England, BAE agreed to make an ex-gratia payment for the benefit of the people of Tanzania of £ 30 million less any fine imposed by the Crown Court. Additionally, BAE was to be ordered to pay £ 225,000 costs to the SFO. All this was announced before the case came before the court. When it did, in sentencing BAE, Bean J. took the view that BAE had concealed from the auditor and ultimately the public the fact that they were making payments to a particular individual, the overwhelming preponderance via offshore companies, and that they were giving him wide powers to make such payments to such people as he thought fit in order to secure the radar contract for BAE but in such circumstances that BAE did not need and did not want to know the details. The judge therefore questioned whether the charge under section 221 of the Companies Act 2005—and not bribery—was an appropriate one. The danger of this charge, which did not, for example, carry debarment from procurement tendering,72 was that it may have appeared to have understated the extent of the defendant’s culpability.

In Innospec,73 Thomas L.J. made his disapproval or this sort of arrangement even clearer. In this case the plea was to a crime of turpitude, not one that might be dismissed as a technical accounting infringement. As was the case in BAE, however, there was pressure from a US Department of Justice prosecutor. Innospec, a UK company, a wholly owned subsidiary of Innospec Inc., manufactured TEL, a fuel additive which was being phased out in many countries because of environmental and health concerns. By 2000 Indonesia was of one of the four remaining principal customers for TEL. Although Innospec Inc was a Delaware company “its executive offices were in Cheshire and the corruption in Indonesia was organised by the directing minds of Innospec Ltd based in the UK”. Following investigation by the US Government and the SFO, Innospec pleaded guilty to conspiracy to make corrupt payments to Indonesian public officials. The “best estimate” of the total amount of bribes was approximately $ 8 million. In addition, Innospec was implicated in $ 5.8 million worth of bribes in relation to the UN’s Oil for Food Programme in Iraq. The company’s independent directors admitted the criminal offences and began discussions with the US prosecutors, to which the SFO became party, as to the fines and other penalties: both the SFO and the DOJ agreed that in the light of Innospec’s full admission and full co-operation, they should not seek to impose a penalty which would drive the company out of business.”74

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