Tuesday, 1 November 2011

Regina vs Shivpuri

    Can the Law convict you on the basis of a mere intention you might have to commit a crime? If so, how is intention to be proved? The game-changing Case in this context is Regina vs Shivpuri.  ' The appellant, on a visit to India, was approached by a man named Desai, who offered to pay him £1,000 if, on his return to England, he would receive a suitcase which a courier would deliver to him containing packages of drugs which the appellant was then to distribute according to instructions he would receive. The suitcase was duly delivered to him in Cambridge. On 30 November 1982, acting on instructions, the appellant went to Southall station to deliver a package of drugs to a third party. Outside the station he and the man he had met by appointment were arrested. A package containing a powdered substance was found in the appellant's shoulder bag. At the appellant's flat in Cambridge, he produced to customs officers the suitcase from which the lining had been ripped out and the remaining packages of the same powdered substance. In answer to questions by customs officers and in a long written statement the appellant made what amounted to a full confession of having played his part, as described, as recipient and distributor of illegally imported drugs. The appellant believed the drugs to be either heroin or cannabis. In due course the powdered substance in the several packages was scientifically analysed and found not to be a controlled drug but snuff or some similar harmless vegetable matter.

What is interesting about this case is that if the appellant had simply kept silent when arrested, the prosecution would have had no case. Everything hinged on his mental intention (mens rea) and his testimony alone could convict him.

Every idiot knows one keeps schtum when arrested. One is actually cautioned to do just that.
Was Shivpuri an idiot?
Let us weigh up the evidence.
Shivpuri, a journalist, photographer and documentary film-maker, was a mature student of Law at SOAS.  As such, he may well have believed that his confession could not be used against him as it was a case of 'impossible attempt'.
This argument holds if Shivpuri already knew the supposed drugs were no such thing. Perhaps, as a journalist, he was carrying out a 'sting' operation. Indeed, this is the explanation he gave me of his conduct.

Interestingly, it was the Utilitarian Legal scholar, Glanville Williams who tipped the Court against Shivpuri and the doctrine of 'impossible attempt'. Intentions refer to intentionality, intentionality in so far as it is inter-subjective is strategic. Utiltarianism can't cope. That's why it's simply fucked in the head and neither 'God's law nor dog's law' but simply bad puppy law.

But, and this is the crux of the matter, perhaps Shivpuri himself (who has no other convictions and was certainly not a louche character- he co-authored a book with the theologian Jim Garrison) in equal obedience to the Schopenhauerian Will- which, why not?, is Utilitarian, being fucking worthless and fundamentally Evil- made his own signal contribution to the law the only way he could- viz. by being so stupidly convicted.

Is there a point to this blog post? Yes. Utilitarianism sucks ass big time. It throws away information. Also, don't study law at SOAS. That's just silly.


Anonymous said...

Not sure Shivpuri had such a clean record, vide- http://www.ejurix.in/Cases/BOM/BOM-1979/10Aug1979%20%28GJX%29%200003%20BOM.htm.
I really can't see what point you're making. Shivpuri was properly cautioned, there is no suggestion of duress, he gave a long written statement in which he claimed he thought he was smuggling hashish or some similar drug, the conviction was safe.
You say he already knew the substance was harmless. If so, why on earth should he confess that he thought it was a drug of some kind?
You say his behaviour was 'strategic'. He was involved in some sort of 'sting' operation and didn't want the bad guys to know that he knew that the stuff they'd asked him to distribute was harmless. But, if that was the case, why did he not just keep his mouth shut? Who would trust a drug distributor who, the moment he is arrested, starts and blabbing and giving long written statements?
Let us suppose, as you suggest, Shivpuri believed he couldn't be convicted because of 'impossible attempt' (for this to be plausible, he must have already known that the substance was harmless). Let us further suppose that he makes a false confession because, for some reason, he wishes to be perceived as a drug distributor. In that case, his intention is to be perceived as a criminal. From the Utilitarian point of view, he gets what he wants viz. the treatment accorded a bona fide criminal- viz a stiff stretch of porridge- without actually doing anything really bad.
Whatever arguments might be urged against Utilitarianism as a philosophy of jurisprudence, Regina vs Shivpuri is not one of them.

Anonymous said...

Sorry. The link I supplied does not work. Here is the relevant extract-
10Aug1979 (GJX) 0003 BOM
Bombay High Court
Decided on: August 10, 1979



Misc. Criminal Application No. 831 of 1979, dated August 10, 1979.


In person, for the Petitioner.

Mr. V. D. Govilkar with Miss S. G. Shah, Advocates, for the Respondents.


Rege, J. - This is a petition challenging an order of the Additional Collector of Customs, Bombay, dated 3-11-1978, (issued on 2-12-1978) confiscating opium weighing 19 1/2 Kgs. valued at Rs. 12,675/- and Indian Currency of Rs. 3,250/- paintings costs and levying a penalty of Rs. 2,000/- against the petitioner in the adjudication proceedings held under the Customs Act, charging the petitioner for attempting illegally to export 19 1/2 Kgs. of Charas in contravention of sections 7 and 38 of the Dangerous Drugs Act, 1930, as well as for attempting to export Indian Currency and Antiquities (paintings) in contravention of F.E.R.A. and Antiquities Act, 1946 and unauthorised import of Foreign currency into India in contravention of F.E.R.A. 1973.

windwheel said...

Are you sure this is the same guy? And did i read that correctly= 19 1/2 kilos of opium cost just 12,000 Rs? WTF!
Actually, I think what happened is, Shivpuri suddenly becomes convinced that while trying to outsmart the guys setting him up, he himself has been outsmarted. They've pulled a switch at the last moment. His morale collapses. He confesses to everything believing that, as a man who has been made a fool of by people he was trying to fool, he deserves nothing better.
There is still a problem with Utilitarianism's approach to impossible event. Real criminals will never reveal mens rea because they keep schtum. Precisely the sort of quixotic sad sacks who never actually pull anything of, on the other hand, are caught in the net.