CRIMINAL JUSTICE AND THE CRIMINAL LAW 3
THE CONTOURS OF CRIMINAL LIABILITY 4
CRIMINALIZATION 5
THE POLITICS OF LAWMAKING 7
ASSESSING THE BUSINESS OF OFFENCES 8
MORALLY WRONG BEHAVIOR 9
VICTIMLESS CRIMES 10
CONCLUSIONS 11
USED LITERATURE 13
CRIMINAL JUSTICE AND THE CRIMINAL LAW
The operation of the criminal law requires little explanation in clear cases. Someone who deliberately kills or rapes another is able to be prosecuted, convicted, and sentenced. Criminal liability is the strongest formal condemnation that society can inflict, and it may also result in a sentence, which amounts to a severe deprivation of the ordinary liberties of the offender. Of course, there are another official deprivations of our liberties: taxation is one, depriving citizens of the proportion of their income, or adding a compulsory levy to commercial transactions (for example, Value Added Tax). And taxation, no less than criminal law, may be seen as justified by the mutual obligations necessary for worthwhile community living. But most cases of taxation do not carry any implication of ‘ought to do’; whereas criminal liability carries the strong implication of ‘ought to do’. It is the censure conveyed by criminal liability, which marks out its special social significance, and it is this censure (as well as the liability to state punishment), which requires a clear social justification.
The chief concern of the criminal law is seriously antisocial behavior. But the notion that English criminal law is only concerned with serious antisocial acts must be abandoned as one considers the broader canvas of criminal liability. There are many offences for which any element of stigma is diluted almost to vanishing point, as with speeding on the roads, illegal parking, riding a bicycle without lights, or dropping litter. This is not to suggest that all these offences are equally important; it can be argued, by reference to the danger to others that exceeding the speed limit ought to be regarded in a more serious light than commonly appears to be the case. Yet it remains true that there are many offences for which criminal liability is merely imposed by Parliament as a practical means of controlling an activity, without implying the element of social condemnation characteristic of the major or traditional crimes. An alternative approach might be to create a new regulatory agency and to invoke some kind of civil process, but this is generally regarded as too complex or too expensive, given that the police force (and some existing regulatory agencies) may be adapted to deal with the problem. Thus, the only feature which distinguishes some of these minor offences from civil wrongs, like breach of contract and liability in tort, is the decision by Parliament that they shall be criminal offences, attended by criminal procedures and triable in criminal courts. Therefore, although some offences in the criminal law are aimed at the highest social wrongs, there is no general dividing line between criminal and non-criminal conduct corresponding to a distinction between immoral and moral conduct, or between seriously antisocial and other conduct. The boundaries of the criminal law are explicable largely as the result of exercises of political power at particular points in history.
THE CONTOURS OF CRIMINAL LIABILITY
When we refer to criminal liability, what sort of conduct we are talking about? The answer may differ not only from one country to another, but also from one era to another in the same country. Some acts of homosexuality and abortion, which were criminal in England before 1967 are not criminal now, whereas some forms of insider trading on the stock market and the possession of indecent photographs are criminal now, although they were not until a few years ago. There are certain seriously antisocial forms of conduct, which are criminal in most jurisdictions but, in general, there is no straightforward moral or social test of whether conduct is criminal. The only reliable test is the formal one: is the conduct prohibited, on pain of conviction and sentence?
The contours of criminal liability may be considered under three headings: the range of offences; the scope of criminal liability; and the conditions of criminal liability. The range of criminal offences in England and Wales is enormous. There are violations in respect of:
- 1. The person, including offences of causing death and wounding, sexual offences, certain public order offences, offences relating to safety standards at work and in sports stadiums, offences relating to firearms and other weapons, and serious road traffic offences;
- 2. General public interests, including offences against state security, offences against public decency, crimes of breach of trust, offences against the administration of justice, and various offences connected with public obligations such as the payment of taxes;
- 3. The environment and the conditions of life, including the various pollution offences, offences connected with health and purity standards, and minor offences of public order and public nuisance; and
- 4. Property interests, from crimes of damage and offences of theft and deception, to offences of harassment of tenants and crimes of entering residential premises. As in many other legal systems, there is a whole host of miscellaneous criminal prohibitions as well
- 1. Criminalizing offensive behavior unless certain further criteria are fulfilled;
- 2. The use of paternalistic reasons to justify criminalization;
- 3. Criminal liability for omissions except in strong cases;
- 4. Extending the criminal sanction to minor harms;
- 5. The use of the criminal law to deal with minor harms; and
- 6. The creation of so-called victimless crimes
- 1. N. Lacey, ‘Contingency and Criminalization’, in I. Loveland (ed), The Frontiers of Criminalization (1995)
- 2. D. Brown and T.Ellis, Policing low-level disorder: Police use of Section 5 of the Public Order Act 1986 (1994)
- 3. A.T.H. Smith, ‘The Public Order Offences’ (1995) Crim LR, 28