Scope of Criminal Law

The Scope of Criminal Law

• Criminal law typically addresses serious wrongful behavior, like murder and rape.
• Criminal offenses are framed as public wrongs, against the community and state, not just individuals (unlike civil contract or tort laws).
• A criminal conviction brings stigma and potential incarceration.
• Glanville Williams argues a substantive definition of criminal law is impossible, and instead offers a procedural definition.
• A crime is an act that can be followed by criminal proceedings with outcomes like punishment.
• Williams' definition helps distinguish between civil and criminal wrongs, relating to the seriousness attached to crime.
• Criminal law is the system that prevents crime.

The Scope and Volume of Criminal Law – Overcriminalisation?

• From May 2010 to May 2011, 634 new offenses were created in England and Wales.
• This is due to more governmental departments enforcing standards.
• DEFRA introduced 108 offenses in 2008 to address Bovine spongiform encephalopathy (mad cow disease).
• Increasing regulatory offenses have blurred the lines between criminal and civil legal systems.
• Statutory law's inaccessibility is profoundly unsatisfactory, even for courts.
• The Law Commission calls for a 'root to branch' review of regulatory offenses, favoring civil measures.

The Problem of Overcriminalisation

• In the 1960s, Sanford Kadish proposed the "over-criminalization thesis," related to "moral," "victimless," "regulatory," or "quasi-criminal” offenses.
• Academics Andrew Ashworth, James Chalmers and Jeremy Horder have contributed to the debate.
• The "liberal argument" suggests criminalization impacts individual citizens if conduct is not serious and maximizes freedom from criminal sanction.
• The "instrumentalist argument" posits that criminal law might be unsuitable for certain behaviors causing more harm than good.
• The "authoritarian argument" states overcriminalization undermines criminal law.
• Further reading by: Sanford Kadish and Andrew Ashworth,

Normative Values Limiting Criminalisation

• Normative principles of criminalization are important due to perceived “over-criminalization”.
• These principles set normative standards for when conduct should be subject to criminal sanction.
• They guide criminal liability and challenge over-criminalization.
• These principles are not mutually exclusive.

Autonomy and the Harm Principle

• Liberalism, freedom, and autonomy suggest individuals should be free from undue influence in making life choices.
• The harm principle states power can be exercised over a civilized community member only to prevent harm to others (J.S. Mill).
• Penal legislation is supported in preventing harm to others (Feinberg).
• Defining harm is difficult.
• Joel Feinberg restated Mill's principle defining harm as a violation of another's rights.
• The harm principle can be stretched too wide, so it is often accompanied by a principle of restraint – minimal criminalization

The Offence Principle

• The offence principle is needed, because the harm principle could be interpreted too broadly, harm, hurt and disgust need to be distinguished (Feinberg).
• Offences can be harmless, so "offense" needs to be a separate principle, not included with the harm principle.
• The law should intervene with wrongful behavior that causes serious offense.
• This is justified as serious offence can affect well-being and public enjoyment.

Legal Paternalism

• Legal paternalism justifies state intervention to protect individuals from themselves, preventing physical, psychological, or economic harm.
• Examples include laws banning drugs or smoking.
• Liberal critiques argue using criminal law for an individual's own good is a severe invasion of autonomy.
• Paternalism can be active or passive, pure or impure, hard or soft.
• Main criticism is the infringement of a person's autonomy.
• A case study is non-sexual, non-fatal offenses against the person and consent to harm.
• You cannot consent to ABH or GBH is a classic example of legal paternalism.
• The 'Law Commission Consultation Paper No 139, Consent in the Criminal Law (HMSO, 1995) suggests 'Paternalism softened at the edges'.
• Behaviours excluded from public policy exceptions offer insight into paternalism.
• Consent is not usually valid where injuries amount to ABH or worse unless falling within public policy exceptions recognised by appellate courts (BDSM: R v Brown [1993]).
• Body Modification: R v BM [2018]

Legal Moralism

• Some commentators, like Lord Devlin, believe the State must use criminal law to uphold social morals to not risk undermining the very moral fabric of society.
• P Devlin, The Enforcement of Morals
• HLA Hart, Law, Liberty and Morality
• A Case Study of Legal Moralism: The 1950s: Hart v Devlin debate over harm, morality and homosexuality
• Lord Patrick Devlin and HLA Hart debated whether “moral” and “victimless” crimes like homosexuality should be subject to criminal sanction.
• Wolfenden Report (1957) stated: “there must remain a realm of private morality and immorality which is...not the law's business."
• But, “In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State." (Lord Simmonds in Shaw v DPP [1962] AC 220)
• "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised”: Lord Templeman in R v Brown [1994]

The Principle of Minimal Criminalisation

• Andrew Ashworth builds on the harm principle noting harmful behavior does not automatically mean it should be criminalized.
• Criminal law is a serious tool to stop particular behaviour, so caution should be used even to control clearly harmful behaviour.
• Criminalisation of HIV transmission is a good example, as It’s seen to push the problem underground, making prevention more difficult.
• Ashworth and others argue for minimal criminalization, treating criminal sanction as a 'last resort'.
• Ashworth contends criminal law's unprincipled basis makes criminal law a 'lost cause'.
• Minimalization is an insistence that criminalization must in most circumstances be a measure of last resort"
• A Case Study: Sexual Transmission Of Disease
• *Dica [2004]
• *Konzani [2005]
• "To punish a person who infects another, where that other is in a position to avoid infection and elects to run the risk, simply serves to reinforce the predominant view that HIV/AIDS is someone else's problem; and if the decision in Dica has this effect, it will have done all of us a great disservice".