CRIMINAL JUSTICE AND THE CRIMINAL LAW 3
THE CONTOURS OF CRIMINAL LIABILITY 4
THE POLITICS OF LAWMAKING 7
ASSESSING THE BUSINESS OF OFFENCES 8
MORALLY WRONG BEHAVIOR 9
VICTIMLESS CRIMES 10
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 liiberties 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 off ‘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 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 ju
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
When we turn to the scope of criminal liability, we raise the question of the circumstances in which a person who does not cause one of the above harms may, nevertheless, be held criminally liable. In legal terms, the question has two dimensions: inchoate liability and criminal complicity. A crime is described as inchoate when the prohibited harm has not yet occurred. Several of the offences mentioned are defined in terms of ‘doing an act with intent to cause X’, and they do not therefore require proof that the prohibited harm actually occurred. More generally, there are the inchoate offences of attempting to commit a crime (e.g. attempted murder), conspiring with one or more other people to commit a crime (e.g. conspiracy to rob), and inciting another to commit a crime. These offences broaden the scope of criminal liability considerably by providing for the conviction of persons who merely tried or planned to cause harm. Turning to criminal complicity, this doctrine is designed to ensure the conviction of a person who, without actually committing the full offence himself, plays a significant part in an offence committed by another. Thus another may convict a person of aiding and abetting another to commit a crime, or counseling or procuring the commission of crime.
The conditions to be fulfilled before an individual is convicted of an offence vary from one crime to another. There are many crimes, which require only minimal fault, or no personal fault at all. These are usually termed offences of ‘strict liability’: some of them are aimed at companies, but others (including many road traffic offences) are aimed at individuals. More of the traditional offences, which have been penalized by the common law of England for centuries, are said to require mens rea. This Latin term indicates, generally, that a person should not be convicted unless it can be proved that he intended to cause the harm, or that he knowingly risked the occurrence of the harm. The emphasis of these requirements has been upon the defendant’s personal awareness of what was being done or omitted, although some judicial decisions have created exceptions to this. Beyond the mens rea requirement, which may differ in its precise form from crime to crime, there is a range of possible defenses to criminal liability, so that even people who intentionally inflict harms may be acquitted if they acted in self-defense, while insane, while under duress, and so on.
The contours of the criminal law are thus determined by the interplay between the range of offences, the scope of liability, and the conditions of liability. Inevitably there are times when the discussion focuses on one of the elements only, but the relevance of the other two must always be kept in view if the discussion is not to lose perspective.
It was suggested that the reach of the criminal law depends on the range of offences, the scope of criminal liability, and the conditions of criminal liability. Writings on English criminal law have focused largely on the conditions of liability and on the scope of liability, and there has been a tendency to devote little attention to the rightness or wrongness of criminalizing certain product. Apart from discussions of the relationship between sexual ‘morality’ and the criminal sanction, the boundaries of the criminal law have usually been treated as ‘given’. This, in turn, may foster the assumption that those boundaries represent some kind of objective dividing line between the criminal and the non-criminal, whereas the actual range of offences is best explained historically as the product of various political and other forces in particular social contexts.
The system of criminal law may be justified as a mechanism for the preservation of social order. As a type of law, its technique is condemnatory and it authorizes the infliction of state punishment. To criminalize a certain kind of conduct is to declare that it should not be done, to institute a threat of punishment in order to supply a pragmatic reason for not doing it, and to censure those who nevertheless do it. This use of state power calls for justification by reference to democratic principles, and justification in terms of sufficient reasons for invoking this coercive and censuring machinery against individual subjects. Reasons of the second type usually relate to concepts such as harm and culpability.
The purpose of this chapter is not to search for some objective benchmark of criminality or for some general theory, which will enable us to tell whether or not certain conduct should be criminalized. The range of actual and potential crimes is so wide and variegated that this seems unattainable. In respect of most kinds of conduct, the issues arising are complex and far-reaching. The purpose is rather to identify some principles that may tell for or against making conduct criminal, and to point out some good or bad reasons. Although it is true, as already argued, that the frontiers of criminal liability are not given but are historically contingent, it remains important to strive to identify those interests that warrant the use of the criminal law and to refine notions such as harm which play so prominent part even in political discussions of these questions.
The concern will chiefly be legislative decisions to extend or curtail the criminal law, and the reasons which have been significant or which should have been significant in those decisions. The impact of the criminal law on citizens is determined not so much by the legislature as by the practices of the various law enforcement agents-chiefly police officers, but also officials from HM Customs and Excise, the various statutory inspectorates, and so on. Thus the legislature may be said to provide the tools, resources, or authority for law enforcement agents when it creates a criminal offence, but decisions about when to invoke and when not to invoke the available powers are taken by enforcement officers. The exercise of discretionary power therefore provides the key to practical instances of criminalization.
THE POLITICS OF LAWMAKING
Creating a new criminal offence may often be regarded as an instantly satisfying political response to public worries about a form of conduct that has been given publicity by the newspapers and television. The pressure on politicians to be seen to be doing something may be great, and considered responses such as consultation and commissioning research may invite criticisms of indecision and procrastination. Thus, in many countries, the growth of the criminal law may reflect particular phases in contemporary social history, as written by the mass media and politicians.
We may consider two examples of recent legislative extension of the range of the criminal law: the offences in Part V of the Criminal Justice and Public Order Act 1994 and, first, the offence of causing harassment, alarm or distress in the Public Order Act 1986. In its reform of public order law in the 1980s, the government added to the offences recommended by the Law Commission a further offence, consisting of disorderly behavior or threatening, abusive or insulting behavior, likely to cause ‘harassment, alarm or distress’: Public Order Act 1986, section 5. The reason for adding this offence was to give the police the power to intervene at the early stages of disorder, and also to deal with minor acts of hooliganism. Much could be said about the origins and import of provision. For present purposes, it is sufficient to note that the new offence is additional to that created by section 4 of the Act, of using threatening, abusive or insulting words or behavior with intent to cause others to fear violence or with intent to provoke others to use violence. This raises the question whether there was a satisfactory justification for the further police powers and wider offence in section 5: the requirements of section 5 are so modest and broadly-stated that it could be used to cast the net of criminality very wide. Research into the use of section 5 shows just this: although the reliance if the police on section 5 varies considerably from area to area, one feature is that it has been much used to criminalize people who swear at police officers. This demonstrates at once the use by the police of public order offences as ‘resources’ to use when people show disrespect, and also the way in which criminalization ostensibly aimed at one set of situations (e.g. disturbing residents by kicking over dustbins) can then be adapted to deal with situations for which its use was not envisaged (i.e. swearing at the police).
The Criminal Justice and Public Order Act 1994 contains various new crimes aimed at penalizing trespassers on land. For many years the general principle has been that trespass to land is not appropriate for criminalization – there are civil remedies, disputes are better decided in the civil courts, and accelerated orders to possession are available to landowners. A few exceptional offences did exist before, but the 1994 Act goes much further by criminalizing aggravated trespass on land with intent to disrupt lawful activities thereon by extending the police power to order trespassers off land, with associated offences for noncompliance, by permitting house owners to take stronger action against squatters, and by creating a new offence of unauthorized camping. There may be more political symbolism in these new offences than a real prospect of large-scale police action, but the offences are now on the statute book and several questions arise. Is such conduct so serious that the criminal law ought to be invoked rather than the civil process? Is there not a danger that, as with the Public Order Act 1986, section 5, the wide drafting of these offences will permit their use by the police against other forms of conduct? Aggravated trespass is an offence supposedly aimed at hunt saboteurs, but its wording could encompass many other forms of protest. Unauthorized camping is an offence supposedly aimed at New Age travelers, but its wording is clearly apt to criminalize gypsies for following their long-established way of life. Much will therefore turn on patterns of enforcement. If the experience of the 1986 Act, section 5, is a fair indicator, there will be local variations with some police forces using the powers fully and others declining to do so, and with much depending on the dynamics of particular situations. Senior police officers have already expressed discomfort about enforcing the new offence of unauthorized camping against gypsies, but perhaps the politicians are content that an offence has been created and thus ‘something has been done about it’.
Thus the basic principle is the harm principle: the reduction of harm to others is away a good reason in support of penal legislation. Minimalism draws attention to the criminal law’s role as generally the most powerful form of censure, and thus advocates the minimum use of criminalization. In most systems it is hardly practical to restrict the criminal law to direct, victimizing harms. Some obligations of individuals towards the collectivity should be reinforced by the criminal sanction, and we have also mentioned other forms of harm, such as remote harm and harms to self, which will be considered further below.
ASSESSING THE BUSINESS OF OFFENCES
The practical importance of the enquiry is manifest. The decision to create a criminal offence to cover certain conduct or omissions has obvious consequences for citizens and law-enforcement officers. Where an offence has been created, the maximum penalty assigned to it determines the extent both of the court’s powers and of the offender’s liability to punishment. The maximum penalties attached to offences may also be taken to convey the relative seriousness of the types of offence; indeed one of the main functions of criminal law is to express the degree of wrongdoing, not simply the fact of wrongdoing. This is integral to determining the proper label for the offence and the appropriate degree of punishment. Moreover, the differing degrees of seriousness have wider practical consequences for the:
• Legality of arrest without warrant;
• Lawfulness of searches;
• Decision to prosecute or to caution;
• Decision to try the case in the Crown Court or the magistrates’ court;
• Sentencing powers of the court;
• Decision to release a prisoner on parole; and
• Many other considerations at various stages in the criminal process.
We must enquire, therefore, not only whether the behavior is serious enough to be made into a criminal offence, but also, if it is an offence, how serious it is when compared with other crimes.
It is not difficult to see some toeholds for the assessment of relative seriousness. There is a widely held view that, in general, offences of violence are more serious than property offence.
MORALLY WRONG BEHAVIOR
If certain behavior is regarded as morally wrong, is this sufficient justification for the creation of a criminal offence? Such a principle is unlikely to be taken to the extreme, for example, of creating general offences of telling lies or breaking promises, but there have been vigorous debates about the proper ambit of the criminal law in the realms of sexual morality. In the notable exchanges between Lord Devlin and Professor Hart, 48 Devlin’s argument was that a society is entitled to use the criminal law against behavior which might threaten its existence; that there is a common morality which ensures that cohesion of society, that any deviation from this common morality is capable of affecting society injuriously; and that therefore it may be justifiable and necessary to penalize immoral behavior. 49 in response, Devlin’s opponents have broadly followed the approach of John Stuart Mill 50 in proclaiming that the only acceptable reason for criminalizing behavior is that causes harm to others, and that supposed ‘immorality’ is not a sufficient reason.
Lord Devlin’s argument relies on an unacceptably loose concept of morality. He assumes that immorality is to be defined and measured according to the strength of feelings of ordinary people. If certain behavior evokes feelings of intolerance, indignation, and disgust among ordinary members of society, that is a sufficient indication that the behavior threatens the common morality and is therefore a proper object of the criminal law. The difficulty is that these feelings of ordinary people may not be moral in nature, but the expression of prejudice. If a person’s reaction to certain behavior is to be termed ‘moral’, it ought to be grounded in reasons as well as in feelings, and those reasons ought to be consistent with other standards used by that individual to judge personal behavior. A theory about morality and the criminal law must be based on a secure definition of morality not one which confuses it with mere feelings of distaste and disgust.
Von Hirsch and Jareborg limit their analysis to crimes with individual victims. Many existing offences may be described as having the state or corporate entities as their victims, but during the twentieth century there has been a growing class of crimes in which there is no victim or, perhaps, nobody who regards herself or himself as a victim. Chief among these are the various drugs offences. The justifications advanced for criminalizing drug possession, dealing, etc., are a combination of paternalism with remote harm. It is claimed that individuals should be protected from harming themselves through the taking of drugs, especially on the theory that soft drugs may lead to hard drugs. It is also claimed that taking drugs may lead others to do the same, and they may then go on to hard drugs, and may eventually suffer an inability to function effectively and even death. The trade in hard or Class A drugs is often regarded almost as an inchoate offence of homicide, as the following remarks of Lord Lane, CJ illustrate:
The most horrifying aspect is the degradation and suffering and not infrequently the death, which the drug brings to the addict. It is difficult to understand why in some parts of the world traffickers in heroin in any substantial quality are sentenced to death and executed.
The main determinants of criminalization continue to be political opportunism and power, both linked to the prevailing political culture of the country. The contours of the criminal law are not given, but are politically contingent. Seemingly objective criteria such as harm and offence tend to melt into the political ideologies of the time, as McCormick argues:
“Resort to the criminal law is always parasitic on or ancillary to an established legal order of rights and duties in the spheres of private law and public law. Such an order of rights and duties (et cetera) has to be founded on some (however muddled and patchwork) conception of a just ordering of society. The interests protected from invasion by criminal laws are interests legitimated by a given conception of a just social order. And the harm principle would be vacuous without some such conception of legitimate interests. Hence, naturally, the laws, which are justified by the harm principle on a given interpretation of ‘harm’, do indeed coincide with widely held precepts against ‘harmful’ behavior. But they do not merely coincide; the criminal law in so far it is concerned with fending off harmful behavior is necessarily geared to protection of what are legitimate interests according to a certain dominant political morality.”
Even granting that some of the recent examples of criminalization are based on a ‘conception of a just ordering of society’, their enactment raises questions of principle of the kind discussed above. In addition to the democratic and political principles concerning the notion of representative democracy, there are questions of the theoretical and practical justifications for invoking the criminal law.
So we have examined some of the main arguments of principle that can be deployed to persuade or dissuade, and to formulate justifications for extending or narrowing the reach of the criminal law. It has been argued that the principle of autonomy or positive freedom, combined with a minimalist version of the welfare principle, provides the foundation. There are some kinds of conduct that ought to criminalized in order to ensure that individuals do not have their autonomy infringed by the coercive of others and that the conditions for autonomy are preserved but, in general, the principle of autonomy suggests that the criminal law should be kept to a minimum. Other means of regulation should be adopted wherever possible. This leads, generally speaking, to arguments against:
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.