One of the more ridiculous suggestions in recent weeks has been that shoplifters (we used to call them thieves) will no longer be prosecuted if they have stolen less than £200 worth of goods – reduced this week to £100 after discussions with retailers. The exceptions will be serial rather than repeat offenders.


Instead, there will be an £80 fine, no caution and no criminal record. Of course, this is a good way to manipulate criminal statistics to show there is a decrease in crime. Unfortunately, it is a matter of simple mathematics. For many, it will be worth risking a potential, but by no means certain, loss of £80 against a potential profit of £100. In a matter of years it will be £500, or even more.



What is more dangerous in the scheme of things is that there will be decriminalisation of street theft of a similar amount and, of course, the present £100 ceiling will rise with inflation. And why not burglaries of offices premises? Or unoccupied homes? Or occupied homes where the householder is not put in fear? Or not very much fear? Will it come to it that the victim must ensure that the property he is losing comes to over the current minimum before he breaches the thief’s human rights by trying to stop him? Not this year, perhaps not for five years, but it seems this is a very slippery slope.



I was interested in the case of the man who was found not guilty of a drink-driving offence on the grounds that he had been sleep-walking. He had, it seems, gone to bed and then woken up in the car.



There have, I believe, been well over 100 sleepwalking defences worldwide of people charged with murder and some have been successful. One of the earliest seems to have been in 1878 when Simon Fraser was found not guilty of killing his young son, to whom he was devoted. He was acquitted, but then came the problem of what to do with his homicidal tendencies when he was sleepwalking. There were suggestions he should be sent to a mental institution, but the problem was solved with an undertaking by his wife that she would lock him in his room each night.



Much more recently, and controversially, was the case of UK-based US soldier Wills Eugene Boshears, who on New Year’s Eve 1960 took the opportunity of his wife’s absence – she was visiting her parents – to go on what used to be known in pre-cocaine days as ‘the toot’. For Boshears, this consisted of drinking all day and then going to a public house where he met local girl Jean Constable and another man, Leslie. They returned to Boshears’ flat where they all fell asleep on a mattress in front of the fire and when he woke at around 12.45, the other man left. Boshears and Jean went back to sleep.



Boshears’ version of what happened later was that ‘the next thing I remember [is]something scratching me. I opened my eyes. Jean was lying there under me, and I had my hands round her throat’. He decided to cut her hair and, after taking the body into the spare room, went back to sleep on the mattress. He awoke about 11.30 on New Year’s Day. Boshears kept the body in the flat until just before midnight the next day, then wrapped it up and dumped it in a roadside ditch. He burned most of her clothing but kept her watch as a souvenir. His police statement ended: ‘I don’t know what happened or why I did it.’



The prosecution case was that Boshears had killed the girl while trying to rape her, but from this sort of unpromising scenario great defences evolve. Pathologist Francis Camps, who claimed he’d carried out nearly 60,000 post-mortems, was obliged to concede, of the soldier’s sleepwalking account, that: ‘I would not go so far as to say it was impossible’.



Boshears, defended by Gerald Hines, himself later a judge, gave evidence well. The trial judge, Mr Justice Glyn-Jones, summed up saying the jury must use their common sense. It was murder or not; manslaughter did not enter the equation. They retired for less than two hours before returning a not-guilty verdict.



The House of Lords had great fun with the verdict. Forgetting, or ignorant of, the Fraser case, their Lordships believed it to be without precedent. Lord Eldon thought there should be a verdict of ‘guilty but asleep’, and there was a debate whether the law should be changed so that those acquitted might be detained.



Meanwhile, the Boshears family was reunited and reconciled over a candlelight dinner. He had some $800 in back pay coming to him and, after a medical inspection, which proved him both fit and sane, and a three-day R&R furlough (rest and recuperation), he returned to service. He did not stay in Britain for long and, back in Glasgow, Montana, he was soon discharged in circumstances which were described mysteriously as ‘other than honourable circumstances’. Some time after, he was killed in a car accident. It is not thought he was asleep at the wheel.



As for ‘the toot’, the expression seems to have originated at Harvard in the 1850s and was a secretive spree – usually with drink taken – during which the senior students would seek to impress freshmen.



James Morton is a former criminal law specialist solicitor and now a freelance journalist