THE LAST DITCH An Englishman returned after twenty years abroad blogs about liberty in Britain
Of sound and unsound money
Sticks and stones - again

Nudge nudge

BBC News - Can you persuade people not to buy stolen goods?

The British authorities now seem to have placed property criminals on the 'too difficult' pile. The authors of a new "report" say that those who steal take so little interest in the law that they don't even know the relevant punishments. Surprise, surprise.

Given the rates of recidivism in Britain, knowing the punishment seems to make little difference. Some might suggest that's because (a) the detection rate is so low as to make criminals think they were just unlucky to be caught and (b) the sentences are an inadequate deterrent for those without concern for reputation. However, the British state never chooses to do a job better if it can give itself a new job instead. 

What does a criminal do when faced with a tough potential victim? Look for a weaker one. Likewise, as the state can't (within the constraints of current ideology) influence criminals as it would wish, it turns its sights on the rest of us. Knowingly receiving stolen goods has, of course, been a crime for centuries but
The authors of the submission suggest, as a first step, the default position should be that anyone found in possession of stolen goods be prosecuted under the Theft Act.
If it turns out the laptop you bought on eBay was stolen by the seller, are you to be prosecuted for the new crime of "possession of stolen goods?" 

My criminal law tutor at university thought me odd for disliking crimes of "strict liability." I preferred (and still do) the traditional formula that a crime must involve both mens rea and actus reus (an intention as well as an act). Of course prosecutors prefer purely factual crimes - like having a stolen laptop in your house - to the hassle of having to prove you knew it was stolen. That's just one more good reason why the preferences of prosecutors should never be considered in creating criminal law.

This new proposal is presented as a trendy 'nudge' solution. It certainly isn't if it involves creating a new crime of 'possession'. That would be a bog-standard use of state violence. If the report's authors are proposing a change in prosecution policy so that everyone found in possession of stolen goods is taken to court, it's no better. That would be an extreme example of  'process as punishment' as well as a monumental waste of police and prosecution resources.

Would dragging people through the courts when even the police and Crown Prosecutors believe them innocent really be an effective way of winning hearts and minds? I doubt it. It would create a lot of public sector 'jobs' though and make more people more afraid of state power.

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