Introduction to Criminal Law PDF

1. An Introduction to Criminal Law Criminal Law: Text, Cases, and Materials (11th edn) Jonathan Herring p. 1 1. An Introduction to Criminal Law Jonathan Herring https://doi.org/10.1093/he/9780198904656.003.0001 Published in print: 24 May 2024 Published online: August 2024 Abstract This chapter begins by addressing the question: what is a crime? Most modern definitions fall into two categories, the moral and the procedural. Moral definitions are based on the claim that there is or should be an intrinsic quality shared by all acts criminalized by the state. Procedural definitions argue that crimes are such because criminal law recognizes public wrongs as violations of rights or duties owed to the whole community. The chapter covers the role of criminal law; the statistics of criminal behaviour; the ‘principles’ of criminal law; proposals for a Criminal Code; conduct that should be criminalized; culpability; the victim in criminal law; the criminal process; criminal law and the Human Rights Act 1998; critical criminal law; feminist legal thought; punishment; and sentencing. Keywords: criminal law, crime, criminal behaviour, criminal code, culpability, Human Rights Act 1998, feminist legal thought, punishment, sentencing Central Issues 1. It is extremely difficult to answer the question: ‘What is a crime?’ An important distinction is drawn between the criminal law, where the aim of the court is to punish the wrongdoing of the defendant, and the civil law, where the aim of the court is to compensate the victim for injuries wrongfully caused by the defendant. 2. There are certain principles which are generally thought to underpin the criminal law. These include the principle of legality (that crimes should be clearly defined), the principle of responsibility (that a person should only be guilty if they are to be blamed for their actions), the principle of minimum criminalization (that the criminal law should be used only where Page 1 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law absolutely necessary), the principle of proportionality (that the sentence given for an offence should reflect its seriousness), and the principle of fair labelling (that the description of the offence should accurately describe the wrong involved). 3. The criminal law is made up of a mixture of statutes and common law principles. Some people believe that the law would be in a better state if the criminal law was put into a single Criminal Code. However, others think that this would make the law too inflexible. 4. There has been much debate about how the government should decide which acts are criminal. A popular approach is to say that the criminal law should only be concerned with acts which cause other people harm. 5. There is extensive dispute between criminal lawyers on how to determine the extent to which defendants can be blamed for their actions. 6. Criminal lawyers tend to focus on the definitions of criminal offences. In practice, the procedures that lead to a person facing a criminal court are also extremely important. 7. Feminist and critical scholars have done much to challenge some of the unspoken assumptions that underlie the criminal law. p. 2 1 What Is a Crime? Click or tap here to access an introductory video , where Jonathan Herring welcomes you the study of criminal law and sets out his approach to the subject. You probably think you know what crimes are: murder, rape, theft, and so forth. But is it possible to define a crime? A wide range of conduct can be the basis for criminal offences. Everything from murder to shoplifting; from pollution offences to speeding. Can a definition of ‘a crime’ be found which includes all these offences? As the following extract demonstrates, the answer to the question ‘What is a crime?’ depends on your 1 perspective: Page 2 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law L. Farmer, ‘Definitions of Crime’ in P. Cane and J. Conaghan (eds) The New Oxford Companion to Law (Oxford: OUP, 2008), 263–4 There is no simple and universally accepted definition of crime in the modern criminal law, a feature that probably reflects the large and diverse range of behaviours that have been criminalized by the modern state. It is now widely accepted that crime is a category created by law —that is, a law that most actions are only criminal because there is a law that declares them to be so—so this must be the starting point for any definition. Most modern definitions of crime fall into two main categories, the moral and the procedural. Moral definitions of crime are based on the claim that there is (or should be) some intrinsic quality that is shared by all acts criminalized by the state. This quality was originally sought in the acts themselves—that all crimes were in an important sense moral wrongs, or mala in se—and that the law merely recognized this wrongful quality. The weakness of this approach was that it could extend to certain actions which seemed morally neutral (often referred to as mala prohibita), such as speeding or failing to register the birth of a child, which have been made crimes by statute. Accordingly, it is argued crimes are such because criminal law recognizes public wrongs as violations of rights or duties owed to the whole community, that is, that the wrong is seen as the breach of the duty owed to the community to respect the law. This definition covers a broader range of offences, as well as recognizing the sociological fact that many acts are criminal only by virtue of being declared so by the law. The strength of this type of definition is less a description of the object of the crimination law, than as an account of the principles which should limit the proper scope of the criminal law. Procedural definitions, by contrast, define crimes as those acts which might be prosecuted or punished under criminal procedure. The most influential definition of this type was produced by legal theorist, Glanville Williams, in 1955. He sought a purely formal definition of crime. For him, a crime is: an act capable of being followed by criminal proceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics which mark it as criminal. This is undeniably circular (something is criminal if it is criminal), and seems to avoid definition of the term ‘criminal’ and so might appear to be of little use. However, it arguably reflects more accurately the reality of the modern criminal law, where the scope of the law has extended to p. 3 include large numbers of regulatory offences tried under criminal proceedings, ↵ the content of which go far beyond conduct which can easily be regarded as moral or even public wrongs. However, given the diverse range of sanctions and procedures which can be adopted, from forms of treatment or reparation to mediation or restorative justice, it is not obvious that this definition alone can help to determine what is or is not a criminal proceeding. Page 3 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law As this extract suggests, whether a particular kind of conduct should be regarded as criminal can change over time as a response to political and social factors and depends on where in the world you live. For 2 example, the legal response to same-sex sexual activity has changed over the decades in response to a variety of social, political, and legal influences. The definition of a crime comes into focus when it is necessary to distinguish crimes from civil wrongs. If you hit someone you may be prosecuted for the criminal offence of assault and receive a fine. You may also be sued by the victim for damages in the civil law of tort. Both proceedings in a sense result in the same outcome for the defendant: a loss of money; but these legal proceedings have crucial differences. It is the censure and punishment that are attached to a criminal conviction which can explain the difference 3 between civil and criminal proceedings. A fine carries with it moral blame, while an award of damages may signify that a person is responsible for the loss, but not carry the sense of condemnation that a 4 5 criminal sanction does. Antony Duff argues that a criminal conviction formally condemns [the accused’s] conduct as a wrong, and formally censures her, as the agent of that conduct, as a wrongdoer. Not everyone is convinced by this argument. It is, for example, possible to award punitive damages in civil proceedings if the court regards the tort or breach of contract as a particularly blameworthy one. So, other areas of law, outside criminal offences, can involve punishment. Also, a person may receive a parking fine and regard it as a reasonable fee to park in a convenient place, rather than a mark of moral blame. Indeed, some people seem rather proud of racking up parking fines! A different explanation of the difference between civil and criminal proceedings is that criminal law involves wrongs that interfere with the rights of the victim which the state has a duty to protect, while civil law deals with wrongs that a victim can protect themselves from, or that can be remedied by damages. So, we cannot expect a victim of domestic abuse to protect themselves from abuse; but we can expect a car driver to protect themselves from minor 6 car accidents by driving carefully and taking out insurance. There is another challenge to the claim that the unique role of the criminal law is public censure. That is social media. In the past it would be hard for anyone to make a public statement of blame, and the criminal courts had a unique role in that regard. However, now a person who behaved badly might face the wrath of p. 4 social media, and will be publicly ↵ blamed. That might well occur well before any court trial. The problem is that social media as a means of public censure, has none of the controls the courts have. As John 7 Gardner notes: The problem, in short, is not so much that we live in a ‘blame culture’ but that we live in a ‘call- out culture’ where accusation, reproach, censure, and punishment run wildly out of control and can no longer be managed back into proportion by mediating institutions such as the criminal courts. In the following passage, Lucia Zedner warns against defining crimes simply in terms of the official legal 8 response. She starts by setting out the official legal classifications of what crimes are, before challenging them: Page 4 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law L. Zedner, Criminal Justice (Oxford: OUP, 2005), 61–3 To think about crime, as some criminal law textbooks still do, as comprising discrete, autonomous legal categories remote from the social world, is to engage in an absorbing but esoteric intellectual activity. The exercise of the law is not an arcane clerical task of filing different behaviours in discrete and precisely labelled boxes to achieve nothing more than a semblance of order. Of course, conceptual clarification and normative critique are essential elements of criminal law. Criminal law must define crimes clearly and crimes so defined should be worthy of their label. But the emphasis given by some textbooks to the legal requirements of mental and conduct elements is at odds with the practice of the criminal law, where these concepts play a more marginal role. To illustrate, students of criminal law typically begin their studies by minute examination of the intricacies of the mental elements of crime. They are less often asked to begin by reflecting upon the fact that the great bulk of the 8,000 offences in English criminal law are crimes of strict liability and, as such, require no intention. The sheer number of offences of strict liability raises doubts about the centrality of intention to criminal liability and about the centrality of individual responsibility. It might even be said to place in question what the criminal law is for. With respect to offences of strict liability at least, it is difficult to sustain the notion that crime is principally defined by culpable wrongdoing. The misapprehension that practising lawyers devote their energies to tortured discussion about the degree of certainty needed to infer or find intention from evidence of foresight would similarly be dispelled by observation of the caseload and working patterns of magistrates’ courts where intention is rarely at issue. Likewise, although university courses generally focus on serious offences such as murder, manslaughter, assault, and rape, in practice petty property, public order, and driving offences are the staple work of the lower courts. It is not surprising that generations of students of criminal law are misled into thinking that serious offences and jury trials are the norm, and that sentences of imprisonment are common punishment. Attention to the statistics of recorded crime; to the proportion of cases going to magistrates’ and Crown courts; and to patterns of punishment quickly reveals another truth. Page 5 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law p. 5 ↵ Most importantly, for a criminologist to accept that crime is that which is defined by law would lead to some perverse results. To proceed from the idea that crime exists only in law and only insofar as it has been proven in a court of law would excise from criminology a good part of its present subject matter, scope, and interest. By this definition there could be no dark figure of unrecorded crime since, legally, it is not crime at all. It would also require that the British Crime Survey be renamed the British Survey of Alleged Crime and its respondents called not victims but claimants. Official criminal statistics, on the other hand, would enjoy a perfect fit with crime. For by definition only those acts and omissions proven to satisfy the legal requirements of crime before a court of law and recorded as such would count as crime. Studies of attrition rates would also need to be re-conceptualized. There could be no gap between the commission and reporting of crime, nor between reporting of crime and recording by police, and no failure of clear-up rates either. Likewise there could be no offenders other than those convicted, nor any victim whose offender has not been so convicted. In sum, the possibility of hidden crime, of unreported crime, of unsolved crime, or of unknown or undisclosed victims would evaporate and much criminological endeavour with it. Further Reading Duff, R. and Marshall, S. (2021) ‘Is Criminal Law “Exceptional”?’ Criminal Law and Philosophy 17: 39. Finkelstein, C. (2000) ‘Positivism and the Notion of an Offense’ California Law Review 88: 335. Gardner, J. (2023) ‘Why Blame’ in I. Solanke (ed) Crime, Society and Responsibility in the Work of Nicola Lacey (Oxford: Oxford University Press). Husak, D. (2002) ‘Limitations on Criminalization and the General Part of the Criminal Law’ in S. Shute and A. Simester (eds) Criminal Law Theory (Oxford: OUP). Lamond, G. (2007) ‘What Is a Crime?’ Oxford Journal of Legal Studies 27: 609. Mayson, S. (2020) ‘The Concept of Criminal Law’ Criminal Law and Philosophy 14: 447. Williams, G. (1955) ‘The Definition of Crime’ Current Legal Problems 8: 107. 2 The Role of Criminal Law What should the aim of the criminal law be? The United States’s penal code has a clear answer. Page 6 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law The American Model Penal Code, section 1.02 (1) The general purposes of the provisions governing the definition of offenses are: (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; p. 6 (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes; (c) to safeguard conduct that is without fault from condemnation as criminal; (d) to give fair warning of the nature of the conduct declared to constitute an offense; (e) to differentiate on reasonable grounds between serious and minor offenses. Of course, not everyone will agree with all of these. Even if they are accepted, these principles will often 9 conflict, and where they do there will be disagreement over how they should be balanced. Take the example of bullying. This is behaviour which clearly falls within (a) as conduct which harms another. But there is great difficulty in defining precisely what bullying is as is required by (d). The law must then decide either to enact legislation which is rather vague but will mean that bullying can be prosecuted, or to enact 10 legislation which is precise, but might allow some bullies to ‘get away’ with their wrongdoing. While many commentators see the role of criminal law in political terms—such as ensuring that there is order on the streets—Antony Duff argues that the central role of the criminal law is part of a moral conversation: ‘The criminal law provides the institutional framework within which, and procedures through which, perpetrators of public wrongs can be called to account (held responsible) for those 11 wrongs.’ He develops this in the following summary of his thinking on the role of the criminal law: Page 7 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law R.A. Duff, ‘Responsibility Citizenship and Criminal Law’ in S. Green and R.A. Duff (eds) Philosophical Foundations of Criminal Law (Oxford: OUP, 2011), 127 The criminal law, in its substantive dimension, defines certain types of conduct as criminal (and defines certain defences for those who commit such criminal conduct). In so doing, it defines and condemns such conduct as wrong: not merely, and trivially, as legally wrong, as a breach of the rules of this particular game, but as morally wrong in a way that should concern those to whom it speaks, and that warrants the further consequences (trial, conviction, and punishment) that it attaches to such conduct. To say that it defines such conduct as wrong is not, however, to say that it creates that wrongfulness: although it is trivially true that criminal conduct is criminally wrongful only because the criminal law so defines it, it is substantively false to say that such conduct is morally wrongful only because the criminal law defines it as wrong. The criminal law does not (cannot) turn conduct that was not already wrongful into a moral wrong: it does not determine, but presupposes, the moral wrongfulness of the conduct that it defines as criminal; it determines which pre-criminal wrongs should count as ‘public’ wrongs whose perpetrators are to be called to public account. Its adjectival dimension then specifies the procedures through which those accused of perpetrating such wrongs are called to account: the criminal trial, as the formal culmination of the criminal process, summons a defendant to answer to a charge of public p. 7 wrongdoing, and to answer for ↵ that wrongdoing if it is proved; if he cannot offer an exculpatory answer, he is convicted and thus condemned as a wrongdoer. Finally, in its penal dimension, the criminal law provides for the determination and administration of punishments for those convicted of such public wrongdoing. 12 Duff in his later writing develops his approach, suggesting that crimes should be understood as being a particular kind of public wrong, one that should be understood in an understanding of ‘civil life’. So a crime is a wrong that threatens civil order. Therefore a dispute between neighbours over the placing of a fence is not disrupting ‘civil order’, and thus a private law remedy is appropriate; a fight in a street does disrupt civil order and so is suitable for criminal sanction. Domestic abuse in the past was seen as a private matter but is now generally recognized as a major interference in civil order. Duff goes on to argue that just because something interferes with civil law there are still other questions to ask, such as whether there are different ways to respond to the wrong, apart from the criminal law, and in particular whether it is the kind of wrong that requires the public censure that attaches to a criminal conviction. Further Reading Chiao, V. (2016) ‘What Is the Criminal Law For?’ Law and Philosophy 35: 137. Page 8 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law 3 The Statistics of Criminal Behaviour We will consider the statistics for particular offences when we deal with them separately. But here are some general statistics which give a picture of criminal behaviour in England and Wales. It should be noted that there is a significant difference between reported offences (those reported to the police and officially recorded) and surveys which interview people and try and find out whether they have been the victims of crimes, even if not reported to the police (e.g. the Crime Survey for England and Wales (CSEW)). Studies suggest the following: 13 (1) Around 11 million people in the UK have a criminal record. Around one-third of men and 9 per cent 14 15 of women will have been convicted of a criminal offence by the time they are 53. In one survey, it was found the average person admitted to committing 32 crimes per year. Of course, these are largely ‘minor’, such as not paying for a carrier bag at a self-service till or exceeding the speed limit. The results of that survey may well be an underestimate as a study found that, at given points on various roads, 50 per cent of car drivers were ignoring 70 mph speed limits on a motorway and 16 p. 8 54 per cent were exceeding 30 mph limits. The figures for motorcyclists were 53 per cent and 63 per cent. So most readers of this book are likely to have committed, or will commit, a crime, indeed many crimes, during their lifetime. If you don’t want to fall into this majority, read the following chapters carefully! (2) The CSEW estimates that for the years 2022/3 there were 8.7 million crimes committed against 17 adults in England and Wales. Of these, 6.7 million were reported to the police. Despite a popular perception that the rate of crime is increasing, there has, in fact, been a dramatic drop in the number of violent recorded crimes (excluding fraud and computer offences), from 4,464,000 in 1995 to 998,000 in 2022/23. (3) Fewer than two out of every 100 adults aged 16 and over experienced a crime of violence in the 18 previous 12 months before March 2023. This is a truly remarkable drop from 25 in 100 in 2005 and 40 in 100 in 1995. Questions 1. Do any of these statistics surprise you? Why? 2. Why is it that the general public appears to have such an inaccurate view of criminal behaviour? Further Reading Office for National Statistics (2023a) Crime in England and Wales: Year Ending March 2023 (London: ONS). Page 9 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law 4 ‘Principles’ of Criminal Law We will now turn to some of the so-called principles of criminal law. These are principles which some academic commentators and some judges have suggested underpin the English and Welsh criminal law. It must be emphasized that these are not in any sense strict rules which are followed throughout the criminal law. Rather they are proposed by some academics as principles to which the law should aspire. It should be stressed that some commentators are wary of stating principles that apply across the whole of criminal law and think it is more appropriate to consider the issues as they relate to particular offences. p. 9 4.1 The Principle of Legality This is the principle that criminal offences should be clearly enough defined to enable people who wish to 19 be law-abiding to live their lives confident that they will not be breaking the law. Consider living in a state which had a criminal law: ‘It is a criminal offence to behave badly.’ You would not know what ‘behaving badly’ meant. You may try as hard as you could to live a lawful life but still find that the authorities have regarded a particular piece of conduct as ‘bad’. This principle is often viewed as a key aspect of the ‘Rule of Law’, a notion many constitutional lawyers promote as a central plank of a sound legal system. The principle is now enshrined in our criminal law through the Human Rights Act 1998, as we shall see. This principle has a number of specific aspects, including the following: (1) The law must be clear. (2) The law must be capable of being obeyed. A law which prohibited breathing in public would clearly infringe the principle. (3) The law must be readily available to the public. If all the laws were kept secret, then even if they were written in the clearest language you would not be able to keep them. An example of an offence which arguably infringes this principle is section 5 of the Public Order Act 1986, which states that it is an offence to engage in disorderly behaviour or threatening, abusive, or insulting behaviour likely to cause ‘harassment, alarm or distress’. This is a potentially very wide offence, and indeed it provides a discretion for police officers to arrest 20 people for conduct of which they do not approve. 4.2 The Principle of Responsibility This is the principle that people should only be guilty in respect of conduct for which they are responsible. So, people should not be guilty in respect of conduct over which they had no control. This principle might be infringed if the criminal law punished a person for behaviour carried out while suffering from an epileptic fit, for example. At some point, the courts will need to decide if robots or computers can commit crimes. Page 10 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law 4.3 The Principle of Minimal Criminalization 21 This principle suggests that the criminal law should prohibit something only if absolutely necessary. There are practical reasons for such a principle: our courts and prisons are overcrowded enough as it is without creating an ever-increasing number of offences. But there is also a principled reason for it. A criminal sanction conveys the message that the conduct was not just bad, but bad enough to involve 22 p. 10 criminal proceedings. This censure function will ↵ be lost if less serious conduct is criminalized. The criminal law, it should be remembered, is only one way of influencing behaviour that is seen as undesirable. Education, rewarding good behaviour, shaming, and civil proceedings are alternatives that 23 the law has at its disposal for dealing with bad behaviour. So, it must be asked whether it is necessary to 24 have over 8,000 statutes which create criminal offences. Many academic commentators have expressed 25 concern that we have far too much criminal law. Many law students would agree! In particular there is a concern that creating a new criminal offence is an easy response for politicians to the ‘issue of the day’. 26 Dennis Baker has suggested we need to recognize a right not to be criminalized. In the following extract, Andrew Ashworth argues that the state has become too keen to use the criminal 27 law to deal with ‘troublesome’ behaviour: Page 11 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law A. Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000b) 116 Law Quarterly Review 225 The number of offences in English criminal law continues to grow year by year. Politicians, pressure groups, journalists and others often express themselves as if the creation of a new criminal offence is the natural, or the only appropriate, response to a particular event or series of events giving rise to social concern. At the same time, criminal offences are tacked on to diverse statutes by various government departments, and then enacted (or, often, re-enacted) by Parliament without demur. There is little sense that the decision to introduce a new offence should only be made after certain conditions have been satisfied, little sense that making conduct criminal is a step of considerable social significance. It is this unprincipled and chaotic construction of the criminal law that prompts the question whether it is a lost cause. From the point of view of governments it is clearly not a lost cause: it is a multi-purpose tool, often creating the favourable impression that certain misconduct has been taken seriously and dealt with appropriately. But from any principled viewpoint there are important issues—of how the criminal law ought to be shaped, of what its social significance should be, of when it should be used and when not—which are simply not being addressed in the majority of instances. … [Ashworth goes on to suggest four principles that the law should follow:] The principle that the criminal law should be used, and only used, to censure persons for substantial wrongdoings. The principle recognises that the prevention of such misconduct is a reason for criminalising it: if serious wrongdoing can be identified, it is of social importance that its incidence be reduced. However, this should be distinguished from the less acceptable propositions (a) that the prevention of misconduct is a sufficient reason for criminalisation, and (b) that the criminal law is, either on its own or in combination with other social policies, necessarily an effective means of prevention. The tendency to over-estimate the deterrent efficacy of criminal sentencing has already been mentioned. As for crime prevention strategies, these are usually p. 11 designed to minimise the risk that certain situations or ↵ opportunities will come about, or that certain individuals will find it attractive to behave in particular ways. Appropriately targeted social, educational and housing policies may well have a greater preventive effect than the enactment of a criminal offence and the conviction of (what is likely to be) a relatively small proportion of offenders, a point rarely acknowledged in the political and media discussions that lead to the creation of new crimes. However, methods of crime prevention also raise questions of moral and social principle that should be kept in view. The principle that criminal laws should be enforced with respect for equal treatment and proportionality. … The principle that persons accused of substantial wrongdoing ought to be afforded the protections appropriate to those charged with criminal offences, i.e. at least the minimum protections declared by Articles 6.2 and 6.3 of the European Convention on Human Rights. … Page 12 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law The principle that maximum sentences and effective sentence levels should be proportionate to the seriousness of the wrongdoing. … 4.4 The Principle of Proportionality 28 The sentence accorded to a crime should reflect the seriousness of the offence. This is, in a way, obvious. It would clearly be wrong if murder carried a less serious sentence than assault. But there are more complex arguments over whether one offence is more or less serious than another: is rape more or less serious than having a hand cut off? To deal with such harder cases, we need a way of grading the seriousness of the harm suffered by the victim. Joel Feinberg suggests focusing on the victim’s loss of opportunity or range of choices. Clearly, therefore, murder is the most serious offence as it completely destroys the victim’s range of opportunities 29 or choices. Andrew von Hirsch and Nils Jareborg have suggested another, which focuses on the following four kinds of interests: (1) physical integrity: health, safety, and the avoidance of physical pain; (2) material support and amenity: includes nutrition, shelter, and other basic amenities; (3) freedom from humiliation or degrading treatment; (4) privacy and autonomy. In assessing the degree of harm suffered you should first determine which interests of the victim have been interfered with and then consider the extent of the interference. This involves considering how far it affects the victim’s ‘living standard’: the basic things a person needs to achieve a good life. An assessment 30 of harm will also involve considering the blameworthiness of the defendant. Such an approach has the benefit of providing a focus for determining the extent of harm: how far it impedes victims in living a good life. However, that leaves open the question of what is a good life. Note, however, that von Hirsch and Jareborg have set down a rather particular set of interests, one that promotes an individualized set of values. By contrast, vulnerability theorists promote an understanding of people as 31 p. 12 vulnerable and interdependent ↵ on each other. Relying on such an approach, I have suggested that the criminal law might promote the following interests: (1) The importance of caring relationships. (2) The enforcements of our responsibilities to each other. 32 (3) The significance of the building of trust between people. Such an approach would see domestic abuse, for example, as a core example of a criminal wrong. Notably, the von Hirsch and Jareborg approach focuses on the impact of the crime on the victim and does not capture the sense that a crime involves a public wrong. Some commentators emphasize that what makes criminal law distinctive is that the harm to the victim is not simply a private one, but one which Page 13 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law 33 justifies a public response. This is explored in the following extract in which Victor Tadros explains why a crime is not simply a wrong to the victim. He explores five reasons why even though a victim may not want a prosecution, the public wrong may justify it. Page 14 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law V. Tadros, The Ends of Harm (Oxford: OUP, 2011), 206–98 The first is that there are pragmatic concerns about giving victims control over whether a prosecution goes ahead. Perhaps if the victim of crime is fully informed and acts without any coercion or pressure we should respect her wishes in refusing to consent to the prosecution of the victim. But if we give the victim the right to decide whether the offender is prosecuted in practice this will lead to offenders attempting to intimidate victims into having the charges against them dropped. We might justifiably take the decision whether a prosecution goes ahead out of the hands of the victim in order to protect victims from intimidation. The second is that although there might be a limit on the right of the state to punish offenders without the consent of the victim, the state may still have a right to ensure that the offender is prosecuted and convicted for what he has done. The state may have a right to condemn the offender for his conduct. As I noted [earlier], the victim’s right to see the offender condemned can help to support the right of the state to condemn offenders, but it is not required to vindicate that right. It is permissible for the state to condemn the offender’s conduct whatever the wishes of the victim. So even if the offender could not be punished without the wishes of the victim, he could nevertheless be prosecuted and convicted for his offence. The third reason [is that] when a person commits a criminal offence we have good reason to divert security resources to keep him under surveillance. Through his own choice he has made it seem as though he is a threat to us, and we will then have good reason at least to keep him under surveillance to help to protect others from him. If we use those security resources to protect ourselves from him, we will not be able to use them to avert other threats that we face. He would bear some responsibility for our inability to protect ourselves against those threats, and we are permitted to harm him to avert those threats. I will develop this idea more fully in the next chapter. The fourth reason is that there may be limits on the role that consent plays in the context of both p. 13 self-defence and punishment. In the case where my child attacks me, one reason why ↵ it is plausible that I would refrain from defending myself is that my well-being is significantly set back by the death of my child. Because the future of my child is a very significant end for me, I have a powerful reason not to kill my child. Refraining from killing my child, in that case, does not demonstrate a failure of self-respect. … The fifth reason is that we might think that victims of crime have an obligation to protect other people from criminal offending. The duty of the state is to protect all its citizens and not just victims of crime. As citizens, we have a right to security. That right gives rise to a duty on the state to protect us from harm. … We might think that if they have a right manipulatively to harm the offender for reasons of protection victims might be obliged to exercise that right for the sake of others who will, in this way, be protected from future offending. If that is true, the victim does not have a liberty right to see the offender punished. For if a person has a liberty right to v she may choose either to v or not to v. Rather she has a duty to see the offender punished. Page 15 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law 4.5 The Principle of Fair Labelling 34 This principle requires that the description of the offence should match the wrong done. If the definition of a crime in law departs too markedly from the definition as understood by the general public then the law may fall into disrepute. When defining a crime it is helpful to distinguish the loss a victim suffers and the wrong done to a victim. This point can be made by way of an example: Alf steals Ben’s book; Catherine destroys Davina’s book. Both Ben and Davina suffer the same loss: their books are gone. But the wrongs done to them are different: the way their property was lost matters in moral terms. Hence the criminal law 35 distinguishes between criminal damage and theft. There is more to this point than that. Imagine that both Edward and Fred are pushed over, but Fred was deliberately pushed over and Edward accidentally. They may have suffered the same harm, but the wrong done to them was different. Edward might laugh the event off as an accident, expecting an apology at most. However, Fred would regard the incident as a 36 serious invasion of his right to bodily integrity. So the state of mind of the defendant is an important aspect of the wrong done to the victim. One uncertainty surrounding the issue of labels, is the question of to whom the labels in criminal law are addressed. Are we seeking descriptions which will carry meaning for members of the general public, or 37 meanings which have significance for professionals working in the criminal justice system? A further 38 difficulty is, as Andrew Cornford argues, that the principle ideally: requires that the substantive law reflect distinctions in type, degree, manner and circumstances of causing or risking harm, as well as distinctions among and within forms of culpability. Every possible configuration of these factors would, as an ideal matter, be reflected in a distinct offence. p. 14 ↵ Doing so, he suggests, would produce huge complexity into the law. Perhaps it is more realistic to suggest that the label of the offence gives a very broad indication of the nature of the wrong committed by the defendant than any kind of detailed assessment. Further Reading Ashworth, A. (2000b) ‘Is the Criminal Law a Lost Cause?’ Law Quarterly Review 116: 225. Ashworth, A. (2004) ‘Social Control and Anti-Social Behaviour’ Law Quarterly Review 120: 263. Baker, D. (2007) ‘The Moral Limits of Criminalizing Remote Harms’ New Criminal Law Review 10: 370. Baker, D. (2011b) The Right Not to Be Criminalized (Aldershot: Ashgate). Bowen, J. (2022) ‘“But you could have hurt me! Risk and harm”’ Law and Philosophy 41: 517. Chalmers, J. and Leverick, F. (2008) ‘Fair Labelling in Criminal Law’ Modern Law Review 71: 217. Page 16 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law Cornford, A. (2022) ‘Beyond Fair Labelling: Offence Differentiation in Criminal Law’ Oxford Journal of Legal Studies 42: 985. Farmer, L. (2016) Making the Modern Criminal Law (Oxford: OUP). Greenfield, V. and Paoli, L. (2022) Assessing the Harms of Crime (Oxford: Oxford University Press). Herring, J. (2019b) Law and the Relational Self (Cambridge: Cambridge University Press). Husak, D. (2008) Overcriminalization: The Limits of the Criminal Law (Oxford: OUP). Jareborg, N. (1995) ‘What Kind of Criminal Law Do We Want?’ in A. Snare (ed.) Beware of Punishment (Oslo: Pax Forlag). Mitchell, B. (2001) ‘Multiple Wrongdoing and Offence Structure: A Plea for Consistency and Fair Labelling’ Modern Law Review 64: 393. Tadros, V. (2012) ‘Fair Labelling and Social Solidarity’ in L. Zedner and J. Roberts (eds) Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: OUP). 5 Proposals for a Criminal Code The failure of English and Welsh criminal law to live up to the principles we have just been discussing has led some to suggest that the government should produce a Criminal Code. This would be a single statute which would seek to describe the criminal law (or the important parts of criminal law) in one document in clear language. In producing such a Code, it would be possible to seek to adhere to the principles mentioned in section 4 as much as possible. Indeed, the Law Commission undertook the job of drafting 39 p. 15 such a ↵ Code. However, in 2008, the Law Commission indicated that it had abandoned its work on 40 the Code. Instead, it decided to focus its work on producing proposals to reform particular areas of the law. In an editorial entitled ‘RIP: The Criminal Code (1968–2008)’ the editors of the Criminal Law Review 41 expressed their grave disappointment at this news, saying it was a ‘sad end for a noble ideal’. Although, at first, the idea of a Code might be thought an unmitigated blessing (especially for law students!), in fact it 42 has not proved universally popular. 5.1 Arguments in Favour of a Code (1) Certainty The argument in favour of codification is that it will create a clearly stated rule which will govern whether a person is guilty. This avoids the common law approach of having rather vaguely defined offences whose interpretation can be expanded or contracted by the judge to fit the justice of the particular case. Of course, codification will not produce a criminal law which is absolutely clear in every regard, and it would be wrong to think that all common law offences are utterly vague, but the argument is that a Criminal Code should reduce the circumstances in which the Page 17 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law principle of legality is breached. The point can also be made in constitutional terms—that a Code would help uphold the separation of powers: that the creation of the law should be for Parliament not the judiciary. (2) Accessibility If a member of the public wanted to find out what the criminal law was at present, she or he could not find one document that sets out the criminal law. To get hold of all the statutes and 43 all the case law to provide an effective guide to the present law would be a marathon task. Toulson LJ has made a forceful attack on the lack of access to statutes. Indeed, he has said that it is ‘profoundly unsatisfactory’ if statutory law is not accessible, and he says that statutes are not even 44 readily accessible to courts. In theory, if the entire criminal law could be found in a Code it could become readily available to the general public at all good booksellers. 45 Such arguments have led Paul Robinson to propose a Code which distinguishes between rules of conduct 46 47 and rules of attribution. He sees the rules of conduct as primarily aimed at sending clear messages to 48 citizens telling them what they can and cannot do in simple terms. Controversially, this means that the 49 conduct rules do not include references to the results that arise from the acts or to states of mind. By contrast, rules of attribution are directed towards judges or juries telling them when a particular person should be convicted for infringing a rule of attribution. This distinction has the benefit, he claims, of keeping the rules of conduct (which are directed to the general public) as brief and clear as possible. p. 16 ↵ Critics of Robinson’s approach have argued that rules of conduct can be of little use if they do not include an indication of a state of mind. Take rape: a citizen who was seeking to obey the law would conduct their sex life quite differently if the law on rape was a strict liability offence than if it was an 50 intention-based offence. Antony Duff has suggested that it is unlikely that members of the public will read a Code and that it is more important that the Code makes moral sense in that it reflects community 51 values than that it is linguistically clear. (3) Efficiency The benefits mentioned so far—certainty and accessibility—would also work, it is argued, to make courts more efficient. The judge will be able to give a clear direction on the law to the jury, making the jury’s job easier and lessening the need for appeals to the Court of Appeal following a misdirection by judges. (4) Consistency Proponents of a Code argue that in drafting it the contradictions and ambiguities in the law can be removed. (5) Updating The Code would provide the opportunity to rid the law of ‘old fashioned offences’, which might have made sense when they were passed, but seem bizarre in the twenty-first century. Is it really necessary to have the offence of ‘assaulting a clergyman in the discharge of his duties in a 52 place of worship or burial place’? 5.2 Disadvantages of the Code The following are some of the alleged disadvantages of a Criminal Code: (1) Page 18 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law Obsession with ‘consistency’ There is a concern that if the Code were to become obsessed with guiding principles and internal consistency this might overlook the fact that apparent contradictions within the criminal law in fact reflect the complexity of the many political, ethical, 53 and practical issues involved in developing the law for a particular offence. Apparently, contradictory aspects of the criminal law may in fact prove to be a workable compromise for those areas of the law. Further, the views of the public on what may be an acceptable criminal law are not always consistent or rational. This may justify a criminal law which, although ‘irrational’, perhaps reflects the public morality. 54 (2) The benefits of a Code are overemphasized It is not realistic that The Code will hit the bestseller list. Further, hard cases are hard cases because they involve a clash of important principles. For 55 example, the infamous conjoined twins case (see Chapter 12) raised extremely difficult questions for law and morality. That case would have been no easier were there a Code in place. p. 17 Further Reading de Búrca, G. and Gardner, S. (1990) ‘The Codification of the Criminal Law’ Oxford Journal of Legal Studies 10: 559. Farmer, L. (2014) ‘Codification’ in M. Dubber and T. Hörnle (eds) The Oxford Handbook of Criminal Law (Oxford: OUP). Robinson, P. (1997) Structure and Function in Criminal Law (Oxford: OUP). 6 What Conduct Should Be Criminal? How should the state decide which conduct should, or should not, be criminal? Why should Parliament not 56 make swearing in a public place an offence? We shall shortly consider the extensive academic analysis of this question. But before doing so it is worth emphasizing that in practice a government’s decision on whether to criminalize something is normally a matter of political expediency, rather than fine-sounding principles. Creating a new criminal offence is an easy way for politicians to claim they are ‘doing something’ after a tragedy has occurred. These are some of the principles that academics have suggested should govern Parliament’s decisions on criminalization. 6.1 Autonomy To many commentators the right of autonomy, the right to live one’s life as one likes, is of fundamental 57 importance. Making decisions for ourselves means that we can be proud of the good things that we do, but also that we can be ashamed of, and deserve blame for, the bad things we do. Autonomy plays three crucial roles in defining the criminal law: Page 19 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law (1) It justifies the existence of the criminal law. Without the criminal law, other people could, without punishment, interfere with my right to live my life as I choose. In other words, the criminal law is necessary to prevent one person’s exercise of autonomy interfering with another’s. (2) It restricts the extent of the criminal law. The criminal law impinges on people’s autonomy. If the criminal law made it illegal for same-sex couples to engage in consenting sexual relationships, this would interfere with how many people would like to live their lives. The autonomy principle therefore explains why it is only where the activity causes a significant amount of harm to others or to society that the law is justified in prohibiting it. (3) It justifies censure. If we are autonomous citizens, able to live our lives as we choose, then we p. 18 should be responsible for the bad choices we make as well as the good ones. In other words, the autonomy principle explains why people should be liable for making the wrong choice, and also explains that where people do not have a free choice to act as they should the criminal law provides a defence (e.g. where they are acting under duress). It should not be thought that the autonomy principle is uncontroversial. First, there are some who point out that the right to choose how to live our lives may be available to the rich, the able, and the advantaged, 58 but it may be regarded as a chimera for the poor, the disabled, and the disadvantaged. Indeed, one of the leading proponents of the importance of autonomy, Joseph Raz, has argued that if the state wants to take the right of autonomy seriously it must ensure that the social conditions necessary for the exercise of full 59 autonomy are provided. It might be thought there are plenty in our society who lack those. 60 For others there are concerns that the autonomy principle overemphasizes individualism. It talks about the right for me to pursue my vision of the ‘good life’, but for many people their vision of the good life is 61 tied up with families, friends, and communities. For them the promotion of the good life might mean the promotion of the good of groups of people. There are many offences which appear to protect people from themselves and cannot readily be justified by 62 the autonomy principle. One well-known example is the requirement that people travelling in cars wear seat belts. We feel that although we respect people’s choices, there comes a point where the law states ‘We will not allow you to do such a dangerous thing’. The autonomy principle is behind one of the most popular theories explaining when a state may 63 criminalize: the harm principle. 6.2 The Harm Principle The leading exposition of the harm principle is provided by John Stuart Mill with his famous essay, On Liberty. At the heart of his argument is the following: The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear … because in the opinion 64 of others to do so would be wise or even right. Page 20 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law Essentially, then, the harm principle is that each person should be allowed to do and say what they like provided that this does not harm the interests of others. Simply because an activity is seen as immoral or harmful to the actor is not a good enough reason to justify criminalizing it. The harm principle tells us what sorts of behaviour should not be criminalized. Just because conduct harms others does not mean that 65 p. 19 supporters of the harm principle would necessarily ↵ support criminalizing it. Indeed, Hamish Stewart has argued that in respect of some kinds of conduct people have a right to engage in it, however 66 harmful it might be. Further, there is a wide range of ways that the state could respond to undesirable 67 activity, criminalization being only one of them. The harm principle itself is fairly straightforward. But at its heart is the concept of harm, and it is far from clear what that means. There is little disagreement that cuts, bruises, and death count as harms, but other issues are less straightforward. Indeed, some commentators have argued that the principle is so vague that 68 it can justify pretty much whatever conclusion you want to reach. Nevertheless, debates over harm play a 69 central role in the debates over when it should be illegal to smoke in public. A key point that swayed that debate was that passive smoking caused harm to other people. We will now explore some of the difficulties in applying the harm principle. Is offence harm? 70 71 Is this offence ‘harm’ for the purposes of the harm principle? In DPP v Gough the conviction of Stephen Gough for an offence under section 5 of the Public Order Act 1986 was upheld. For ten years he had been walking around Britain ‘wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck’. He is a committed naturist and believes people should be free to walk around naked if they wish. Two women gave evidence they were disgusted when seeing him walk through a town. Sir Brian Leveson P explained: the district judge was clearly entitled to conclude that, by walking through a town centre entirely naked, he was violating public order or, in the language of the case contributing “to a breakdown of peaceful and law-abiding behaviour as evidenced by the reactions of the public”: he was thus disorderly. There was nothing passive about his conduct in that he knew full well (not least from his past experience) that many members of the public would both be alarmed and distressed by sight of his naked body whether or not others would take a more benign view and whatever the origins or psychological reasons for that alarm and distress. Furthermore, he was being deliberately provocative in order to support his own stance. But is the disgust or discomfort of others sufficient to justify a criminal conviction? Joel Feinberg supports the prohibition of conduct that causes offence. But he uses a strict definition of ‘offence’. Offence involves more than concern or disapproval. An example might be the feelings relatives would have if they found that the body of their loved one had been horribly desecrated. It is unlikely the women’s disgust in the Gough case would be sufficient. For other academics no degree of offence is sufficient to constitute a ‘harm’. To permit offence to be harm enables one set of people to impose their moral values on others. p. 20 Indeed, ↵ the more hard line they are, the more likely they are to be profoundly disturbed, and so the Page 21 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law more likely to fall within Feinberg’s definition of ‘offence’. Surely if two witnesses reported to the police that they were offended by the sight of two men holding hands, that would not be sufficient to justify the men’s arrest. Is emotional distress harm or undignified treatment? Traditionally criminal law has focused on physical harms, but we are increasingly aware of the importance of mental health and emotional well-being. Slowly the criminal law is acknowledging the potential of criminal offences which do not involve a physical injury, such as the offences of stalking and coercive control, which will be discussed in Chapter 7. It is likely that recognition of these kinds of wrong will 72 increase. Trispiotis and Purshouse have suggested that conversion therapy, where someone attempts to change another person’s sexual orientation or sexual identity (e.g. through prayer or aversion therapy), is degrading and undignified treatment. Even if one were to agree with them on this, there is still a debate, as they acknowledge, whether this would amount to harm, sufficient to justify criminalization in compliance with the harm principle. Is harm to future generations harm? This issue is relevant in particular to environmental legislation. If it is demonstrated that an activity will not harm anyone presently living but will have long-term environmental damage which might harm future generations, would this be harm for the purposes of the harm principle? Are potential harms harm? 73 What about conduct which in itself is not harmful, but which carries the risk of causing harm? For example, the criminal law prohibits possession of a firearm. The prohibition is not based on the fact that possession itself harms society; rather the possession of firearms generally is likely to increase their use, 74 which can be regarded as a harm. To some there are grave dangers in accepting potential harms as 75 harms. All kinds of activity are potentially harmful. A similar issue may surround an offence where generally the conduct is harmful, but not always. Take, for example, offences involving sexual contact with people under 16. This will be disputed, but let us assume that while the majority of sexual contact with those under 16 is wrongful, there are some which are not wrongful (e.g. the children are of a similar age and consent as part of a non-exploitative relationship). In such a case, an offence prohibiting all sexual contact where one of the parties is under 16 will make illegal some activities which are not wrongful. It might be argued, therefore, that this is a misuse of the criminal law and infringes the harm principle. On the other hand, it might be said that it is not possible to produce a p. 21 definition of wrongful sexual conduct involving those under 16 and that it is ↵ preferable to prohibit it 76 all rather than to try and produce a definition which will legalize some child abuse. This creates a dilemma in criminalization debates: if a behaviour is sometimes harmful and sometimes legitimate, is it better not to criminalize the activity and the rights of those who engage in it legitimately; or is it better to criminalize it to protect the victims for whom it is a form of abuse. This kind of debate has been a feature (but only one feature) of the debate over prostitution: is it better to outlaw the people who pay for sex, even Page 22 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law though that will infringe the rights of sex workers who wish to engage in that work, in order to protect prostituted women who have not consented; or is it better not to outlaw it, which might protect the rights of the freely choosing sex worker, but fail to protect the rights of prostituted women? In part, debates on such issues will turn on what percentage of the activities are legitimate and what percentage are abusive; and whether the activity, when done legitimately, is socially beneficial. Is damage to the public good a harm? What about offences which are designed not to prevent the harm to individuals, but harm to society 77 generally? Some traffic laws, building regulations, and state security regulations cannot be said to 78 protect identifiable people, but rather are justified for the good running of society as a whole. Are these reconcilable with the harm principle? Sandra Marshall and Antony Duff have discussed the way in which a criminal offence harms not just the 79 victim but the wider community. Others are concerned that once ‘harms’ to groups are taken into account the floodgates may be opened. These concerns are elaborated in the following passage by Michelle Madden Dempsey. Page 23 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law M. Madden Dempsey, ‘Public Wrongs and the “Criminal Law’s Business”: When Victims Won’t Share’ in R. Cruft, M. Kramer, and M. Reiff (eds) Crime, Punishment, and Responsibility (Oxford: OUP, 2012), 270–1 To review, my argument regarding victims who refuse to share runs as follows. Some communities (indeed, most communities of which I am aware) suffer (more or less) from what we can think of as character flaws grounded in structural inequalities such as racism and patriarchy. These communities, we might say, are racist or patriarchal in character. Moreover, the character of some kinds of wrongs committed within these communities can be constituted, at least in part, by the tendency these wrongs have to sustain or perpetuate these vicious character traits. As I have argued elsewhere, for example, we can understand the wrong of domestic violence as being partly constituted by its tendency to sustain or perpetuate the structural inequality of patriarchy, thereby reinforcing the community’s patriarchal character. Criminal justice officials often stand in a particularly good position to act on behalf of their communities so as to condemn the structural inequalities that partially constitute wrongs such as domestic violence, racist violence, rape, gay-bashing, etc. Moreover, if their condemnatory p. 22 ↵ response to such structural inequalities is habituated, it has the potential to reconstitute the character of the community as less patriarchal, less racist, less homophobic, and so forth. It is (in part) because the criminal justice officials act as representatives of their communities—rather than merely as representatives of the individual victims—that they are particularly well- positioned to realize the value of reconstituting the character of their communities in these valuable ways. They are, in other words, often particularly well-suited to fulfilling the criminal law’s constitutive function. Insofar as criminal justice officials do fulfil the criminal law’s constitutive function, we can begin to explain the justification of criminal law’s intervention in cases when Gardner’s displacement function does not apply. In other words, criminal law’s intervention can be justified even in cases where people are not inclined to retaliate against wrongdoers, indeed even in cases in which the victim refuses to share the wrong done to her. For if the criminal law’s response to wrongs can realize the value of (re)constituting the character of the State and/or community in valuable ways, then criminal intervention can be (partly) justified even when no one desires retaliation and even when the victim refuses to share the wrong with her community. Moreover, pace Duff, the victim’s refusal to share need not be unreasonable in order for pursuit of these wrongs to remain within the ambit of the criminal law’s business. Rather, these wrongs become and remain the criminal law’s business simply insofar as criminal justice officials are well-positioned to fulfil the criminal law’s constitutive function. Moral principles One of the key elements of the harm principle is that an activity cannot be criminalized simply because it is 80 regarded as immoral. To use the law to impose moral value is called moralism. Some people argue that there are some moral principles which are central to the well-being of society. Consider the debate over fox hunting. Leaving aside all the other issues, one argument that can be made is that our society is a less Page 24 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law civilized and more cruel society if we allow fox hunting. It diminishes society and what it stands for. Many people will disagree. But these kinds of arguments suggest that when thinking about society’s welfare 81 there will be a wide range of views on what is good for society. Lord Devlin has argued that there is a ‘moral cement’ that helps to keep society together, and that the state is entitled to use the criminal law to protect that cement from being damaged by behaviour which infringes those principles. He suggests that the extent of disgust felt by society at a particular kind of activity would indicate whether it challenged a 82 fundamental value that underpinned society. There is much about this argument which can be challenged. For example, in a multicultural, multi-faith society, is it true there are moral principles which can be regarded as so fundamental to the way people live their lives that they are society’s ‘cement’? Even if you think there are, is it true that the fact that a few people break those moral taboos harms that cement? Was Devlin correct to suggest that disgust indicates 83 p. 23 how precious a moral value is ↵ to society? Many people experience great disgust at the picking of a nose, but that does not indicate that it reflects a fundamental moral principle! 84 Antony Duff suggests that it is helpful to distinguish positive and negative moralism. Negative legal moralists hold that wrongdoing (the wrongness of the conduct to be criminalized) is a necessary condition of justified criminalization, but not that it gives us any positive reason to criminalize. We must not criminalize conduct unless it is wrongful; but our positive reasons for criminalizing it may lie elsewhere—for instance in the fact that it causes or threatens harm to others. By contrast, a positive legal moralist holds that the wrongfulness of a type of conduct gives us positive reason to criminalize it: not necessarily a conclusive reason, since we might find stronger countervailing reasons against criminalization; but at least a good reason. 85 There has been somewhat of a revival in support for moralism as a basis for criminal law. One benefit is that it makes the law more predictable. If the law seeks to match general moral standards in society this may make it easier for citizens to predict what the law is and may make it more ‘in tune’ with general 86 attitudes within society. We have already mentioned Antony Duff’s argument that criminal law should 87 involve a ‘moral conversation’ with a criminal. That conversation, he suggests, seeks to ‘communicate to offenders the censure they deserve for their crimes’ and ‘through that communicative process to persuade them to repent those crimes, to try to reform themselves, and thus to reconcile themselves with those 88 whom they wronged’. That puts morality, or at least a form of morality, at the heart of the criminal law. So, if a conviction for criminal law is to convey censure, as it is commonly argued, does that not imply that the law is involved in recognizing that morality is playing a role in the definition of a crime? Steven Wall, promoting moralism, explains moralism this way: It is a proper function of the criminal law to promote good character, and to restrain or discourage people from engaging in activities that cause moral harm to themselves or to others. Having and sustaining a good character is part of living well. And the law, including the criminal law, may 89 have a role to play in enabling or assisting those who are subject to it in achieving this good. Page 25 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law What this observation may overlook is that compelling people to act in a good way may deprive them of the opportunity to be virtuous by choosing to do good. It is a better society if everyone chooses to be good, than 90 if everyone is compelled to be good. As Victor Tadros puts it: The criminal law has a blaming function. There are positive reasons to communicate about wrongdoing. And this provides a reason in favour of criminalizing it. A society that fails to condemn the serious wrongs that are at the heart of the criminal law fails in its moral duty to respond to these wrongs by engaging with offenders, victims, and the public at large. This reason extends to potential wrongdoers: we owe it to them to help to ensure that they do not become wrongdoers, and the criminal law has a role to play in achieving this, by outlining the reasons 91 they have not to act wrongly. p. 24 ↵ However, he accepts that the reasons in favour of criminalizing moral wrongdoing may be outweighed by other concerns. He would not, for example, support criminalizing queue jumping. The expense would outweigh the benefits of doing that. 6.3 Practicality Although much of the academic debate over criminalization has focused on the controversy surrounding 92 the enforcement of morality, a very important issue is whether or not a law is practically enforceable. There is no point rendering conduct criminal, if it is unlikely the police will ever be able to prove it has happened, or only if extensive police resources are employed. As this indicates, there may be some conduct which should be criminal but there is no point in making it criminal because there would be no way of proving it. Also, it may bring the law into disrepute if few people would obey it. The attempts to make drinking alcohol illegal in the United States in the early part of the last century may be an example of that. A more interesting argument is that if people are largely complying with the law anyway there may be a good case for not using the criminal law as that will deny people the good of behaving well through their 93 own choice, rather than compulsion by the state. 6.4 When Is Criminalization Required? Generally the debates about criminalization discuss the ‘limits’ of criminalization. In this passage Tatjana Hörnle discusses when the state is required to punish criminal behaviour. Page 26 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law T. Hörnle, ‘Theories of Criminalization’ in M. Dubber and T. Hörnle (eds) The Oxford Handbook of Criminal Law (Oxford: OUP, 2014), 700–1 Criminalization theories usually take the question of whether the state may punish certain conduct as their starting point (either implicitly or explicitly). The point of developing arguments in this field is usually to contend that certain reasons for criminalizing behavior are wrong reasons. From the viewpoint of critical policy review, the question whether the state may punish has priority over the question whether the state must punish. Modern legislatures tend toward overcriminalization rather than undercriminalization. However, from a theorist’s point of view, one should not exclude a priori the question of whether conduct must be prohibited with criminal laws, that is, whether the state has a duty of protection toward citizens whose rights would be infringed by the conduct in question. The premises of this perspective are disputed and must therefore be elaborated on. Should the role of constitutional rights be extended from their defensive functions (rights against the state) to protective rights, which is a categorically different right? And what does “protection” mean in this context: prevention only or is it also a right to have wrong-doing correctly labeled? Consider the following thought-experiment: a state abolishes its criminal laws on rape and introduces elaborate preventative and effective (e.g. p. 25 educative) programs instead. Would there still be ↵ reason to demand criminal law norms? Defendants of protective rights take the following position: it is not only prevention that matters, but also categorizing the significance of certain behavior and the adequacy of reactions to the rare events of “lapses.” Moving away from thought-experiments to the realities of contemporary legal systems, it is hard to find examples where, all things considered, one could plausibly claim a strict duty to criminalize. If we examine existing criminal codes, we find that they tend to penalize conduct that violates others’ rights in a comprehensive way. Wrongdoing that violates important rights of others usually will be labeled a criminal offense in positive criminal law. If the argument of a gap within criminal law is nevertheless raised in policy disputes (e.g. with the argument that the state is under a duty to introduce criminal laws against abortion), the crucial point in such debates will be the issue of countervailing rights. When there are some doubts about which rights ought to prevail, a in dubio pro liberate [in cases of doubt favour liberty] principle should be applied … A strict duty to criminalize would presuppose that countervailing rights are of much lesser significance. This constellation will hardly ever be present in those relatively rare cases where protective rights might be a prima facie case for protection—if one takes both side-constraints and in dubio pro liberate seriously. Questions 1. In the light of the issues discussed so far, what arguments can be made for or against fox hunting? What about incest? (See Temkin (1991).) 2. Page 27 of 80 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 11 February 2025 1. An Introduction to Criminal Law William Wilson asks (Wilson (2002: 44)): ‘How can the state justify censuring and punishing the possession of a few grams of cannabis for one’s own use, while possessing a cellar full of wine for the consumption of the diners of Herefordshire risks only the award of the Michelin rosette?’ Do you have a good reply for him? 3. Is the argument ‘It is wrong to enforce morality’ itself a moral principle which its proponents are seeking to enforce? 4. If A releases a dangerous gas which has a 25 per cent chance of killing X and a 50 per cent chance of killing Y, and we see risk as a harm, it seems correct to say that Y was more seriously harmed than X (as they faced a greater risk of death). However if the gas ends up killing both X and Y it would seem odd to say that X was more seriously harmed than Y because although both were harmed by dying X had an additional greater harm by being 94 exposed to the risk of death. Does that mean we should not see risk of harm as a harm? 5. I suspect that if many people were asked at the end of their lives what had caused them the most harm it would not be those things that concern the criminal law, but issues such as broken relationships, which are not covered by the criminal law. Does this mean that the law needs to rethink its understanding of harm? Please visit the online resources for guidance on answering this question. 6. Harcourt (1999) discusses attempts in the city of Chicago to prohibit liquor stores. This is not on the basis of the evils of alcohol, but on the harm such stores are said to cause to the atmosphere and ambience of parts of the city. Is this a good reason for criminalization? p. 26 Further Reading Ashworth, A., Zedner, L., and Tomlin, P. (2013) Prevention and the Limits of the Criminal Law (Oxford: OUP). Baker, D. (2008) ‘Constitutionalizing the Harm Principle’ Criminal Justice Ethics 27: 3. Baker, D. (2011b) The Right Not to Be Criminalized (Aldershot: Ashgate). Bowen, J. (2022) ‘ ‘But you could have hurt me! Risk and harm’ ’ Law and Philosophy 41: 517 Carvalho, H. (2017) The Preventive Turn in Criminal Law (Oxford: OUP). Devlin, P. (1965) The Enforcement of Morals (Oxford: OUP). Duff, R.A. (2013) ‘Relational Reasons and the Criminal Law’ in L. Green and B. Leiter (eds) Oxford Studies in Philosophy of Law (Oxford: OUP). Page 28 of 80

Introduction to Criminal Law PDF

Document Details

Tags

Related

Summary

Full Transcript