- Jonathan HerringJonathan HerringProfessor of Law, Exeter College, Oxford
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.
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.
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 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).
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.
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.
There is extensive dispute between criminal lawyers on how to determine the extent to which defendants can be blamed for their actions.
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.
Feminist and critical scholars have done much to challenge some of the unspoken assumptions that underlie the criminal law.
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 perspective:1
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 include large numbers of regulatory offences tried under criminal proceedings, p. 3↵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.
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 example, the legal response to same-sex sexual activity2 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 between civil and criminal proceedings.3 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 criminal sanction does.4 Antony Duff5 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. 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 car accidents by driving carefully and taking out insurance.6
In the following passage, Lucia Zedner warns against defining crimes simply in terms of the official legal response.7 She starts by setting out the official legal classifications of what crimes are, before challenging them:
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.
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.
2 The Role of Criminal Law
What should the aim of the criminal law be?
The American Model Penal Code, section 1.02
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;(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 conflict, and where they do there will be disagreement over how they should be balanced.8 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 legislation which is precise, but might allow some bullies to ‘get away’ with their wrongdoing.9
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 p. 6↵framework within which, and procedures through which, perpetrators of public wrongs can be called to account (held responsible) for those wrongs.’10 He develops this in the following summary of his thinking on the role of the 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 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.
Duff in his later writing11 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.
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:
Around 11 million people in the UK have a criminal record.12 Around one-third of men and 9 per cent of women will have been convicted of a criminal offence by the time they are 53.13 In one survey,14 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 54 per cent were exceeding 30 mph limits.15 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!
The CSEW estimates that for the years 2020/1 there were 11.1 million crimes committed against adults16 in England. Of these, 5,449,758 were reported to the police.17 Despite a popular perception that the rate of crime is increasing, there has, in fact, been a dramatic drop in the number of recorded crimes (excluding fraud and computer offences), from 12,771,000 in 2002 to 4,612,654 in 2021.
Fewer than four out of every 100 adults aged 16 and over experienced a crime of violence in the previous 12 months before March 2021.18 This is a truly remarkable drop from 25 in 100 in 2005 and 40 in 100 in 1995.
Do any of these statistics surprise you? Why?
Why is it that the general public appears to have such an inaccurate view of criminal behaviour?
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.
4.1 The Principle of Legality
This is the principle that criminal offences should be clearly enough defined to enable people who wish to be law-abiding to live their lives confident that they will not be breaking the law.19 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:
The law must be clear.
The law must be capable of being obeyed. A law which prohibited breathing in public would clearly infringe the principle.
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 people for conduct of which they do not approve.20
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.
This principle suggests that the criminal law should prohibit something only if absolutely necessary.21 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 criminal proceedings. This censure function will be lost if less serious conduct is criminalized.22 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 the law has at its disposal for dealing with bad behaviour.23 So, it must be asked whether it is necessary to have over 8,000 statutes which create criminal offences.24 Many academic commentators have expressed concern that we have far too much criminal law.25 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’. Dennis Baker has suggested we need to recognize a right not to be criminalized.26
In the following extract, Andrew Ashworth argues that the state has become too keen to use the criminal law to deal with ‘troublesome’ behaviour:27
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 p. 10↵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 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. …
The principle that maximum sentences and effective sentence levels should be proportionate to the seriousness of the wrongdoing. …
4.4 The Principle of Proportionality
The sentence accorded to a crime should reflect the seriousness of the offence. This is, in a way, obvious.28 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 or choices. Andrew von Hirsch and Nils Jareborg have suggested another, which focuses on the following29 four kinds of interests:
physical integrity: health, safety, and the avoidance of physical pain;
material support and amenity: includes nutrition, shelter, and other basic amenities;
freedom from humiliation or degrading treatment;
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 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 p. 11↵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 vulnerable and interdependent on each other.30 Relying on such an approach, I have suggested that the criminal law might promote the following interests:
The importance of caring relationships.
The enforcements of our responsibilities to each other.
The significance of building of trust between people.31
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 justifies a public response.32 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.
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 p. 12↵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 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.
4.5 The Principle of Fair Labelling
This principle requires that the description of the offence should match the wrong done.33 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 distinguishes between criminal damage and theft.34 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 serious invasion of his right to bodily integrity.35 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 meanings which have significance for professionals working in the criminal justice system?36
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 such a Code.37 However, in 2008 the Law Commission indicated that it had abandoned its work on the Code.38 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 expressed their grave disappointment at this news, saying it was a ‘sad end for a noble ideal’.39 Although, at first, the idea of a Code might be thought an unmitigated blessing (especially for law students!), in fact it has not proved universally popular.40
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 p. 14by 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 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 all the case law to provide an effective guide to the present law would be a marathon task.41 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 readily accessible to courts.42 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.
Such arguments have led Paul Robinson43 to propose a Code which distinguishes between rules of conduct and rules of attribution.44 He sees the rules of conduct as primarily aimed at sending clear messages45 to citizens telling them what they can and cannot do in simple terms.46 Controversially, this means that the conduct rules do not include references to the results that arise from the acts or to states of mind.47 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.
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 intention-based offence.48 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 values than that it is linguistically clear.49
(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 place of worship or burial place’?50
The following are some of the alleged disadvantages of a Criminal Code:
(1) 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, and practical issues involved in developing the law for a particular offence.51 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.
(2) The benefits of a Code are overemphasized52 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 example, the infamous conjoined twins case53 (see Chapter 12) raised extremely difficult questions for law and morality. That case would have been no easier were there a Code in place.
6 What Conduct Should Be Criminal?
How should the state decide which conduct should, or should not, be criminal? Why should Parliament not make swearing in a public place an offence?54 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.55 For example, in 1990 there was a media campaign against the horrors of ‘killer dogs’, featuring horrific photographs of children attacked by vicious dogs. The campaign called upon Parliament to ‘do something’. In the light of such a campaign, it is hard for politicians not to react, not least for fear that in due course there might be other children harmed by dogs and the press would p. 16↵then say, ‘If only you had passed legislation this child would have been saved’. Indeed, in due course the Dangerous Dogs Act 1991 was passed. The political pressure to increase the number of criminal offences has led some academics to argue that we need to articulate principles to restrict the tendency to create new offences.
These are some of the principles that academics have suggested should govern Parliament’s decisions on criminalization.
To many commentators the right of autonomy, the right to live one’s life as one likes, is of fundamental importance.56 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:
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.
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.
It justifies censure. If we are autonomous citizens, able to live our lives as we choose, then we 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 for the rich, the able, and the advantaged, but it may be regarded as a chimera for the poor, the disabled, and the disadvantaged.57 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 autonomy are provided.58 It might be thought there are plenty in our society who lack those.
For others there are concerns that the autonomy principle overemphasizes individualism.59 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 tied up with families, friends, and communities.60 For them the promotion of the good life might mean the promotion of the good of groups of people.
p. 17There are many offences which appear to protect people from themselves and cannot readily be justified by the autonomy principle.61 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 criminalize: the harm principle.62
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 of others to do so would be wise or even right.63
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 supporters of the harm principle would necessarily support criminalizing it.64 Indeed, Hamish Stewart has argued that in respect of some kinds of conduct people have a right to engage in it, however harmful it might be.65 Further, there is a wide range of ways that the state could respond to undesirable activity, criminalization being only one of them.66
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 it can justify pretty much whatever conclusion you want to reach.67 Nevertheless, debates over harm play a central role in the debates over when it should be illegal to smoke in public.68 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?
Is this offence ‘harm’ for the purposes of the harm principle?69 In DPP v Gough70 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, p. 18↵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. Indeed, the more hard line they are, the more likely they are to be profoundly disturbed, and so the 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 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?
What about conduct which in itself is not harmful, but which carries the risk of causing harm?71 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, which can be regarded as a harm.72 To some there are grave dangers in accepting potential harms as harms.73 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 p. 19↵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 definition of wrongful sexual conduct involving those under 16 and that it is preferable to prohibit it all rather than to try and produce a definition which will legalize some child abuse.74 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 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 generally?75 Some traffic laws, building regulations, and state security regulations cannot be said to protect identifiable people, but rather are justified for the good running of society as a whole.76 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 victim but the wider community.77 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.
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.
p. 20Criminal 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 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.
One of the key elements of the harm principle is that an activity cannot be criminalized simply because it is regarded as immoral.78 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 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 there will be a wide range of views on what is good for society. Lord Devlin79 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 fundamental value that underpinned society.80
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 how precious a moral value is to society?81 Many people experience great disgust at the picking of a nose, but that does not indicate that it reflects a fundamental moral principle!
p. 21Antony Duff82 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.
There has been somewhat of a revival in support for moralism as a basis for criminal law.83 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 attitudes within society.84 We have already mentioned Antony Duff’s argument that criminal law should involve a ‘moral conversation’ with a criminal.85 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 whom they wronged’.86 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 have a role to play in enabling or assisting those who are subject to it in achieving this good.87
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 if everyone is compelled to be good.88 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 they have not to act wrongly.89
p. 22However, 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.
Although much of the academic debate over criminalization has focused on the controversy surrounding the enforcement of morality, a very important issue is whether or not a law is practically enforceable.90 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 own choice, rather than compulsion by the state.91
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.
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: p. 23↵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. 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.
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).)
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?
Is the argument ‘It is wrong to enforce morality’ itself a moral principle which its proponents are seeking to enforce?
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.
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?
For a crime, it is normally not enough to show that the offender caused harm to another; it must also be shown that the defendant was blameworthy in harming the other person. In other words, it must be shown that the defendant was responsible for the harm.92 At a minimum this requires that the defendant was capable of acting differently from the way they did.93
The traditional way of analysing offences is to divide them up into the harmful act of the accused (the actus reus) and the blameworthy state of mind of the accused (the mens rea). Even where both the actus reus and mens rea are present the law provides defences, such as self-defence or duress (e.g. where the defendant commits a crime because they have been threatened with death if they do not).
In the following extract, Nicola Lacey sets out the standard conceptual framework for analysing offences. She explains that through a range of devices the law seeks to ensure that only blameworthy individuals are punished:
N. Lacey and L. Zedner, ‘Criminalization: Historical, Legal, and Criminological Perspectives’ in A. Liebling, S. Maruna, and L. McAra (eds) The Oxford Handbook of Criminology (4th edn, Oxford: OUP, 2007), 65–7
Today, the foundations of criminal liability are generally thought to consist in four distinct elements: those relating to capacity, to conduct, to responsibility or fault, and to defence. We deal with each of these in turn:
1. Capacity: Individuals may only be held criminal liable if they have sufficient mental capacity. Defences such as insanity define certain kinds of people as lacking capacity under criminal law. Since law operates in terms of general standards, the line between criminal capacity and criminal incapacity is relatively crude. Almost every criminal law system exempts from criminal liability people under a certain age, whatever their actual capacities, though the age at which the line between capacity and incapacity is drawn varies significantly by country and over time. Yet again, this underlines the interplay between legal and social constructions of crime. In England and Wales, the abolition of the presumption of incapacity for 10–14 year olds by the Crime and Disorder Act 1998 reduced the age of criminal liability to 10, as compared to 13 in France and 15 in the Nordic countries. Since it cannot plausibly be claimed that children mature at such widely differing rates in neighbouring countries, capacity must be understood as a legal construct contingent on local culture and politics.
2. Conduct: criminal law defines the conduct necessary for an offence: appropriating another person’s property in the case of theft; causing a person’s death in the case of homicide; having sexual intercourse with a person without their consent in the case of rape; driving with a certain level of alcohol in one’s blood in the case of driving while intoxicated. Though there are exceptions in English criminal law, it is generally asserted that the law does not criminalize mere thoughts, status, or omissions. To take some illustrative examples: if I simply fantasize about committing a sophisticated fraud, without taking any steps towards it, I am guilty of no crime. Similarly, my failure to rescue a drowning child will only attract criminal liability if my relationship with the child or my professional responsibility imposes a special duty to act. This last example is a further reminder of the contingency of legal p. 26constructions of crime on local values. In France, laws impose a relatively wide-ranging duty of rescue so that, unlike in England and Wales, failing to rescue a drowning child could render me criminally liable.
3. Responsibility/fault: criminal liability is generally said to depend on a person with capacity being responsible for or at fault in committing the conduct specified in the offence. To put it simply, we do not hold people liable for accidents. Responsibility or fault conditions generally consist of mental states or attitudes such as intention, recklessness, knowledge, belief, dishonesty, or negligence. In the examples above, the relevant conditions are: for theft ‘a dishonest intention permanently to deprive’; for homicide ‘an intention to kill or cause serious bodily harm’ or ‘gross negligence’; for rape ‘recklessness’ or ‘negligence’ as to the victim’s lack of consent. The fourth example—driving while intoxicated—is an exception to the general principle that fault must be proven by the prosecution: only the driving and the blood alcohol level need be established. Notwithstanding their supposedly ‘exceptional’ status, however, these offences of strict liability substantially outnumber offences that require a mental element (mens rea) in English criminal law today (though it is difficult to count). Ashworth and Blake (1996: 309) claim that even of the more serious criminal offences about half featured either ‘strict’ no-fault liability or only a partial fault requirement, and 40 per cent include a reverse burden of proof, placing the burden on the defendant to disprove liability. Most strict liability offences are said to be regulatory rather than condemnatory, whereas offences requiring proof of fault are said to correspond to the quasi-moral terrain of criminal law doctrine. However, as the example of driving while intoxicated illustrates, the line between the two is neither clear nor static: 30 years ago drunk driving was regarded as a regulatory offence; today it attracts strong condemnation. Changing moral and social values influence the meaning, as well as the practice, of criminal law and, as we shall see, point to the importance of criminological and sociological knowledge in understanding how and why crime is defined as it is.
4. Defences: Even where a person with criminal capacity has committed the relevant conduct with the requisite degree of fault, a range of defences may preclude or mitigate liability. … If the defendant has committed a theft while under a threat of violence, she may plead a defence of duress. If a person kills, intentionally, in order to defend himself against an immediate attack, he may plead self-defence. General defences apply not only to crimes requiring proof of responsibility but also to strict liability offences. A person who drives while intoxicated under duress or threat, or in circumstances of necessity, may escape liability. So if you threaten to shoot me if I fail to drive you home, I may be acquitted even if I do so while intoxicated.
Defences are often grouped under the headings of exemptions, justifications and excuses. Each relates to the other three components of liability already mentioned, that is, capacity, conduct, and fault. The defence of insanity recognizes that the defendant’s incapacity exempts her from criminal liability. If I kill while suffering a mental illness, which causes me to misunderstand entirely the nature of my own action, I am considered to lack capacity. Even before trial I may be deemed unfit to plead; or I may be found not guilty by reason of insanity. If I kill while defending myself from attack, I may plead self-defence to claim that my conduct was, in the circumstances, justified and hence not criminal. And if I plead that I assaulted someone because a third party had threatened me or my family with violence if I did not do so, my defence of duress may excuse me because the conditions under which I formed the relevant fault condition mitigate my guilt. The defences may thus be seen as fine-tuning liability to take account of excusatory and justificatory factors.
p. 27Having presented the orthodox position, Nicola Lacey and Lucia Zedner go on to critically assess the description of the law they have just provided. As their discussion shows, the position is not as straightforward as might at first appear:
N. Lacey and L. Zedner, ‘Criminalizaton: Historical, Legal, and Criminological Perspectives’ in M. Maguire, R. Morgan, and R. Reiner (eds) The Oxford Handbook of Criminology (4th edn, Oxford: OUP, 2007), 67–8, 71
‘General Principles’ of Criminal Law: A Critical Assessment
This conceptual framework provides building blocks with which legislators and lawyers construct criminal liability. As the reference to general principles suggests, it contains an implicit set of normative assumptions about what makes the imposition of criminal liability justifiable. The law does not criminalize mere thoughts, or under circumstances in which internal incapacity or external circumstance deprived a defendant of a fair opportunity to conform to the law. It does not convict unless a defendant is responsible for their conduct. The criminal law is not merely an institutionalized system of coercion but a system which purports to address its subjects as responsible for their conduct, which is structured around broadly liberal principles of justice.
Acknowledging the individual as independent, rational, and free-willed requires that those who commit wrongdoing are identified, held to account, and punished proportionately. To do otherwise would constitute a failure to acknowledge individuals as moral agents who can justly be held responsible for their actions. Individual autonomy and dignity are also protected, in theory at least, by procedural safeguards relating to investigation, prosecution, and the criminal trial, by the principles of legality and the presumption of innocence, and the values and principles pertaining to the criminal process. These are intended to safeguard individuals against unwarranted state interference and uphold fundamental human rights enshrined in the European Convention of Human Rights. This paradigmatic liberal account of criminal law emphasizes respect for the rights and dignity of the individual in the criminal process. This said, as criminological research reveals, formal protections are often ignored, subverted, or breached. Some suggest that the liberal rhetoric of respect for the individual masks and makes possible a legal process that has more to do with efficiency than procedural protections. …
Perhaps the most trenchant criticism of liberal accounts of criminal liability has come from communitarian thinkers who argue that they are premised on an atomized view of the individual that overplays autonomy and fails to recognize that we are social beings inseparable from our personal and social relations. Recognizing the importance of community to individuals and the choices they make has profound implications for thinking about wrongdoing and places in question the assumption of individual responsibility upon which the criminal law is predicated. Significant efforts have been made to combine the insights of liberal and communitarian traditions. These balance the liberal strengths of respect for human agency and rights with an acknowledgement that the social antecedents of crime should inform the definition of defences and of responsibility more generally.
A more radical critique still comes from the attempt by some criminologists to move ‘beyond crime’ on the grounds that crime is too restrictive a concept to capture the full extent of harmful behaviour that causes most loss and suffering. Hillyard and colleagues [(2004)]claim that criminal liability is attributed by questionable means and that focusing on the liability of the individual fails to address serious social harms inflicted by groups, organizations, and states. Significantly, this attack on the category of crime is motivated partly by the p. 28↵observation that ‘criminology has largely failed to be self-reflective regarding the dominant, state defined notion of “crime” … The issue of what crime is, is rarely stated, but rather simply assumed’ (Hillyard and Tombs 2007: 11) … Yet this insight might equally suggest that criminology should make good this failure by engaging with the scope and nature of crime, the principles upon which it is defined, and the legal structures in which it is inscribed.
7.1 The Subjectivism/Objectivism Debate
There has been much debate over whether, when assessing the blameworthiness of a defendant, the law should adopt a subjectivist or objectivist perspective. In short, a subjectivist account argues that criminal liability should be determined by looking inside the mind of the defendant and considering their intentions or foresight.94 An objectivist account focuses on the behaviour of the defendant and asks whether the defendant acted as a reasonable person would.
In the following extract, Antony Duff describes the key elements of subjectivism and objectivism:
R.A. Duff, ‘Subjectivism, Objectivism and Criminal Attempts’ in A. Simester and A. Smith (eds) Harm and Culpability (Oxford: OUP, 1996), 19–22
It is no doubt sometimes unhelpful to portray controversies about the proper principles of criminal liability as controversies between ‘subjectivism’ and ‘objectivism’. Certainly neither term picks out a single, unitary, position. Furthermore, some disagreements rather concern the scope of the ‘subjective’ itself: for example, should we analyse recklessness in terms of conscious risk-taking or of ‘practical indifference’, both of which could be portrayed as ‘subjective’ aspects of the agent’s conduct? Nor can we always draw a clear distinction between the ‘subjective’ and the ‘objective’. If we justify an ascription of recklessness by saying that an agent failed to notice some obvious risk because he did not care about it, we are not simply explaining his failure to notice that risk in morally neutral terms: we are, rather, interpreting his conduct in the light of some normative, non-subjective, standard of appropriate care.
In some contexts, however, there does seem to be a clear distinction between ‘subjectivist’ and ‘objectivist’ principles of criminal liability, and controversies which embody that distinction. One such context is the law of attempts. …
‘Subjectivists’ and ‘objectivists’ disagree about the appropriate criteria for action ascriptions. An agent is criminally liable only if an action matching the law’s definition of an offence can justly be ascribed to her. But how should we decide what actions can justly be ascribed to an agent; what criteria should determine our ascriptions? Subjectivists insist that the criteria should be ‘subjective’; the actions that are to be ascribed to an agent, for which she is to be held liable, must be described in ‘subjective’ terms. By contrast objectivists argue that what is ‘mine’ as an agent cannot be defined or delimited in purely ‘subjective’ terms, but must be described in partly ‘objective’ terms.
p. 29But what are ‘subjective’, or ‘objective’, terms or descriptions? We can say that the ‘subjective’ is a matter of the agent’s psychological states: but that is too vague to be helpful. Any more precise account of the ‘subjective’, however, would have to be an account of the different conceptions of the ‘subjective’ expressed in different forms of subjectivism. The two most familiar contemporary subjectivist theories, the ‘choice’ and the ‘character’ accounts of criminal liability, embody different accounts of the ‘subjective’. ‘Choice’ theorists insist that we can properly ascribe to an agent only those actions that he chose to perform; any action for which he is to be held liable must be described in terms of his choices. Choice, as constituting the ‘subjective’, can then be (minimally) defined in terms of intention and belief; I choose to do what I intend to do, or believe myself to be doing. ‘Character’ theorists, by contrast, hold that we should ground criminal liability in the character traits manifested in the agent’s conduct; for them, the ‘subjective’ consists in those dispositions, attitudes, or motives which constitute legally relevant character traits.
In the following passage from a Law Commission report on manslaughter, the benefits and disadvantages of an objectivist and a subjectivist approach are explored:
Law Commission Report No. 237, Legislating the Criminal Code: Involuntary Manslaughter (London: HMSO, 1996), paras 4.4–4.23
Orthodox Subjectivist Theory
4.4 The legal philosophy traditionally applied in mainstream English criminal law and by this Commission is known as ‘subjectivist theory’. It rests on the principle that moral guilt, and hence criminal liability, should be imposed only on people who can be said to have chosen to behave in a certain way or to cause or risk causing certain consequences. The roots of subjectivism lie in a liberal philosophy that regards individuals as autonomous beings, capable of choice, and each deserving of individual respect. It is called ‘subjectivism’ because of the significance that it accords to the individual’s state of mind at the time of the prohibited conduct.
4.5 Three principles have been identified as inherent in this basis of liability. The first of these is the ‘mens rea principle’, which imposes liability only for outcomes which were intended or knowingly risked by the alleged wrongdoer. The second principle, the ‘belief principle’, judges a defendant according only to what she believed she was doing or risking. Thirdly, according to the ‘principle of correspondence’, subjectivists insist that the fault element of a crime correspond to the conduct element; for example, if the conduct element is ‘causing serious injury’, the fault element ought to be ‘intention or recklessness as to causing serious injury’. This ensures that the defendant is punished only for causing a harm which she chose to risk or to bring about.
4.6 Subjectivist philosophy applies widely in the criminal law today. A man cannot be convicted of rape, for example, if he genuinely believed, albeit unreasonably, that his victim consented to sexual intercourse, because this belief would be incompatible with the intention to have intercourse with a woman without her consent, or recklessness as to that possibility, which are the mental states required for rape. …
p. 30Criticisms of the Subjectivist Mens Rea Principle: Can Liability Based on Inadvertence ever be Justified?
4.12 Orthodox subjectivist theory, then, requires the defendant to have been, at least, aware of the risk of causing the prohibited harm. However, there is a body of criticism, from very distinguished commentators, of the orthodox subjectivist mens rea principle. One ground of criticism is that it is based on a simplistic view of what constitutes knowledge or awareness of risk:
… while we do indeed sometimes make our knowledge of what we are doing explicit to ourselves in … silent mental reports, it is absurd to suggest that such knowledge can be actual only if it is made thus explicit. When I drive my car, my driving is guided by my (actual) knowledge of my car and of the context in which I am driving: but my driving is not accompanied by a constant silent monologue in which I tell myself what to do next, what the road conditions are, whether I am driving safely or not, and all the other facts of which I am certainly aware while I am driving …. The occurrence or the non-occurrence of certain explicit thoughts is irrelevant to whether I am actually aware of what I am doing: my actions can manifest my awareness even if no explicit thoughts about the relevant facts pass through my mind at the time.95
4.13 On this view of what constitutes a mental state, the contrast between awareness and lack of awareness of risk is not as stark as in conventional subjectivist accounts, and it is less clear why inadvertence ought not to be classified, as mens rea in certain circumstances.
4.14 The main argument in favour of criminalizing some forms of inadvertent risk-taking, however, is that in some circumstances a person is at fault in failing to consider the consequences that might be caused by her conduct. The example given by R A Duff is that of a bridegroom who misses his wedding because it slipped his mind when he was in the pub. An orthodox subjectivist would point to his lack of intention or awareness, and deem him consequently less culpable. The bride, however, would rightly condemn him, because it is plain from his conduct that he did not care, and this attitude is sufficient to make him blameworthy. Duff argues that this account retains a subjective element, because attitudes are subjective.
4.15 A similar argument was used by Lord Diplock in the famous case on criminal damage, Caldwell:
If it had crossed his mind that there was a risk that someone’s property might be damaged but because his mind was affected by rage or excitement or confused by drink, he did not appreciate the seriousness of the risk or trusted that good luck would prevent it happening, this state of mind would amount to malice in the restricted meaning placed upon that term by the Court of Appeal; whereas if, for any of these reasons, he did not even trouble to give his mind to the question whether there was any risk of damaging the property, this state of mind would not suffice to make him guilty of an offence under the Malicious Damage Act 1861. Neither state of mind seems to me to be less blameworthy than the other. …96
4.16 Professor Hart some years ago attacked the assumption that to allow criminal liability for negligence would be to set aside the requirement of mens rea as a precondition of p. 31↵punishment. His argument was that since ‘negligence’ implies a failure to do what ought to have been done, it is therefore more than inadvertence, it is culpable inadvertence:
Only a theory that mental operations like attending to, or thinking about, or examining a situation are somehow ‘either there or not there’, and so utterly outside our control, can lead to the theory that we are never responsible if, like the signalman who forgets to pull the signal, we fail to think or remember. …
What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities. Where these capacities and opportunities are absent, as they are in different ways in the varied cases of accident, mistake, paralysis, reflex action, coercion, insanity etc, the moral protest is that it is morally wrong to punish because ‘he could not have helped it’ or ‘he could not have done otherwise’ or ‘he had no real choice’. But, as we have seen, there is no reason (unless we are to reject the whole business of responsibility and punishment) always to make this protest when someone who ‘just didn’t think’ is punished for carelessness. For in some cases at least we may say ‘he could have thought about what he was doing’ with just as much rational confidence as one can say of any intentional wrongdoing ‘he could have done otherwise’.97
Professor Ashworth also concedes that negligence may be an appropriate standard for criminal liability where the harm risked was great, the risk obvious and the defendant had the capacity to take the required precautions.
What Makes Inadvertence Culpable?
4.17 In all the sources cited in paragraphs 4.12–4.16, the view is taken that it may be justifiable to impose criminal liability for the unforeseen consequences of a person’s acts, at any rate where the harm risked is great and the actor’s failure to advert to this risk is culpable. We are persuaded by this reasoning. In the following paragraphs, therefore, we consider the criteria by which culpable inadvertence should be judged if it is to attract the sanctions of the criminal law when death results.
4.18 The first criterion of culpability upon which we must insist is that the harm to which the accused failed to advert was at least foreseeable, if not strikingly foreseeable or obvious. If the accused is an ordinary person, she cannot be blamed for failing to take notice of a risk if it would not have been apparent to an average person in her position, because the criminal law cannot require an exceptional standard of perception or awareness from her. If the accused held herself out as an expert of some kind, however, a higher standard can be expected from her; if she is a doctor, for example, she will be at fault if she fails to advert to a risk that would have been obvious to the average doctor in her position.
4.19 As a matter of strict principle, the accused ought only to be held liable for causing death if the risk to which she culpably failed to avert was a risk of death. In practice, however, there is a very thin line between behaviour that risks serious injury and behaviour that risks death, because it is frequently a matter of chance, depending on such factors as the availability of medical treatment, whether serious injury leads to death. Admittedly it is possible p. 32↵for conduct to involve a risk of serious injury (such as a broken limb) though not a risk of death; but intention to cause serious injury constitutes the mens rea of murder although the actus reus is the causing of death, and we see no compelling reason to distinguish between murder and manslaughter in this respect. We consider, therefore, that it would not be wrong in principle if a person were to be held responsible for causing death through failing to advert to a clear risk of causing death or serious injury—subject of course to a second criterion, to which we now turn.
4.20 The second criterion of culpability which we consider to be essential is that the accused herself would have been capable of perceiving the risk in question, had she directed her mind to it. Since the fault of the accused lies in her failure to consider a risk, she cannot be punished for this failure if the risk in question would never have been apparent to her, no matter how hard she thought about the potential consequences of her conduct. If this criterion is not insisted upon, the accused will, in essence, be punished for being less intelligent, mature or capable than the average person. …
4.22 … A person cannot be said to be morally at fault in failing to advert to a risk if she lacked the capacity to do so.
4.23 If the criteria in paragraphs 4.17–4.22 are satisfied, we consider that it is appropriate to impose liability for inadvertently causing harm in cases where the harm risked is very serious. Where a person embarks on a course of conduct which inherently involves a risk of causing death or serious injury to another, society is justified in requiring a higher standard of care from her than from someone whose conduct involves a lesser risk or no risk at all. J L Austin made this point graphically when he wrote ‘We may plead that we trod on the snail inadvertently: but not on the baby—you ought to look where you’re putting your great feet’.98
Until fairly recently criminal lawyers and criminologists have focused on defendants and assessments of their liability.99 The victim, in much writing on criminal law, is a shadowy figure who appears to be an irrelevance. Indeed, sometimes there is a debate about whether it is better not to use the word victim, but to use the word ‘complainant’ (a person who has made a complaint) especially in cases where there has been no trial. However, the issue is difficult. Consider a case of alleged rape where a defendant wrongly but reasonably believed that the victim was consenting. This ‘easy’ case would be dealt with by the law saying that such a defendant lacks the mens rea for rape and so no offence is committed. But that is to look at the question entirely from the defendant’s point of view. As for the victim, she was raped in that she was penetrated without her consent. It is notable that this debate is particularly lively in the area of sexual offences where there is (an unjustified) suspicion that women are more likely to make false allegations of rape than happens in other crimes. In the context of sexual offences the terminology of complainant is used by those who wish to make sure there is no ‘prejudging of the issue’ until a court has issued a ruling; and ‘victim’ is used by those who wish to acknowledge that whatever the technical position in law, the victim has suffered a harm.100
Another aspect of the role of the victim is that the defendant has no defence based on the fact that the crime was partly the ‘victim’s fault’. It is no defence for a burglar to say that the victim had left their front door unlocked. However, some academics have suggested that there is a case for providing a defence where the victim contributed to the harm done to them by the defendant.101 Such suggestions are highly controversial, although they do highlight the fact that it is easy to paint a picture of the ‘bad criminal’ and the ‘good victim’, whereas the truth may be somewhat more complex.
There have been suggestions that victims owe responsibilities. For example, that individuals should be expected to protect themselves from crime. If a victim has stupidly fallen for an internet fraud, is there a case for saying they should have been more careful. A related issue is whether victims have a responsibility to report crime. In a controversial case, a woman who had been raped by her husband but withdrew her complaint out of terror was convicted of perverting the course of justice.102 That seems to have been particularly harsh in the context of that case where the woman was the victim of domestic violence and marital rape.103 She needed the protection of the law, not prosecution by it.
9 The Criminal Process
Statistics on the number of convictions for particular offences are a poor guide to which crimes are actually committed. It is estimated that for 2018–19 only 8 per cent of crimes committed result in a conviction.104 This is because victims often do not report the crimes to the police, and if they do the offender is rarely caught. Even if the offender is found, the police may still decide not to charge him. If the police decide to charge, then the Crown Prosecution Service (CPS) may decide not to pursue a prosecution.105 There have been concerns over how these decisions not to prosecute are reached. In particular, there are concerns that race, sex, and economic background can improperly play a role in the decision.106 The CPS, even if it does decide to prosecute, may charge a lesser offence than the one committed. This might be done for various reasons: the CPS might believe that it would be easier, in order to obtain a conviction, to do so; or the defendant might have offered to plead guilty to the lesser charge, but would plead not guilty to the more serious charge;107 or charging the lesser offence may mean that the case will be heard before magistrates, rather than the Crown Court, and so be cheaper.108 All of this means that it is essential to appreciate that the substantive criminal law applied in the courtroom is only a small part of what constitutes an understanding of criminal responsibility broadly understood.109 As Nicola Lacey writes:
criminal law can and should be understood as part of an integrated process of criminalization incorporating all stages from the articulation of offences through investigation, diversion, prosecution, trial, sentencing, the royal prerogative, and the execution of punishment. Evaluations of responsibility feed into judgments at each of these stages. Conversely, each stage is structured by assumptions about the nature of responsibility, which may moreover vary as between them.110
A particularly topical issue is assisted suicide. Following the decisions of the House of Lords in R (Purdy) v DPP111 and R (Nicklinson) v Ministry of Justice112 the CPS was required to produce and then redraft guidance which set out when they would or would not prosecute cases of assisted suicide.113 Where, for example, the defendant has assisted a relative, p. 35↵who is terminally ill and wishes to die, to commit suicide, it is unlikely there will be a prosecution. By contrast, if the defendant goaded a vulnerable person into committing suicide a prosecution is likely. This means that the current position of assisted suicide is somewhat ambiguous. While still technically a crime it is clear that in some cases it will not be prosecuted. John Spencer has queried whether this is consistent with basic democratic principles:
Is it really compatible with the rule of law that, when an Act of Parliament makes a certain form of behaviour a criminal offence, the DPP should in effect decriminalise it, in whole or in part, by saying when it will and will not be prosecuted? The orthodox answer, forcibly expressed by the Court of Appeal in the judgment which the House of Lords reversed, is ‘no’: once Parliament has created an offence, only Parliament has the authority to redraw its boundaries so that it catches fewer people in its net. For any other organ of the State to attempt to do so is to infringe the first rule of the constitution, which is the supremacy of Parliament.114
He goes on to note that in recent times Parliament has been drafting such overbroad laws that some discretion over prosecution must be exercised.
10 Criminal Law and the Human Rights Act 1998
10.1 The Significance of the Human Rights Act 1998
At many points throughout this book we will consider the potential impact of the Human Rights Act 1998 (HRA) on the interpretation of the offence. This section will not therefore seek to summarize the impact of the Act on English and Welsh criminal law,115 but will outline how the Act works.116 The HRA is designed to ensure the protection of individuals’ p. 36↵rights under the European Convention on Human Rights (ECHR). It protects the rights in the ECHR in two main ways:
(1) section 3 requires judges to interpret legislation in a way which complies with the ECHR so far as is possible. It states:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
As section 3 makes clear, if the wording of a statute is ambiguous and can be interpreted either in a way which is compliant with the Convention rights or in a way which is not, then the statute should be read so as to be compliant. The key phrase is ‘so far as it is possible’. Only time will tell how far the courts will be willing to stretch the meaning of words to comply with the statute. The House of Lords has given some guidance on this by saying that section 3 is to be used to interpret, but not amend, legislation.117 If the court is unable to interpret a statute in line with the Convention rights, then it must apply the statute as it stands and issue a declaration of incompatibility, as a result of which Parliament should consider whether the legislation needs to be amended.118
(2) Section 6 requires public authorities to act in a way which is compatible with the Convention rights. Section 6 states:
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.(2)
Subsection (1) does not apply to an act if—(a)
as the result of one or more provisions of primary legislation, the authority could not have acted differently; or(b)
in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
Importantly for criminal lawyers, the definition of a public authority includes the police, the CPS, and a court.119 The significance of Section 6 for criminal lawyers is as follows:
When the CPS is considering whether or not to bring a prosecution, it is bound by Section 6 because it is a public body. However, in R v G121 a majority of the House p. 37of Lords rejected an argument that to charge a defendant with a particular crime amounted to an interference with his human rights.122
If a defendant has been convicted of an offence which infringes the Convention rights (e.g. a statutory offence which could not be interpreted in line with the Convention) then it can be argued that the court should impose only a nominal sentence (e.g. an absolute discharge). To impose a substantial sentence would infringe an individual’s Convention rights, which Section 6 prohibits.
It is important to appreciate that the HRA can affect the definition of a criminal offence in two ways:
a defendant may argue that to convict them of a particular offence would infringe their Convention rights;
a victim (or potential victim) may argue that the state has infringed their rights by not protecting them under the criminal law.123 In A v UK124 the fact that the stepfather could hit his stepson without being liable to punishment under the criminal law infringed the stepson’s rights under Article 3. This subsequently led the Court of Appeal in H125 to reinterpret the circumstances in which a parent can rely on the defence of reasonable chastisement when facing a charge of assault.
10.2 The Important Articles in the European Convention
The following are the most important rights under the ECHR for criminal lawyers:
The European Convention on Human Rights
Article 2—Right to life1.
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.2.
Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:(a)
in defence of any person from unlawful violence;(b)
in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;(c)
in action lawfully taken for the purpose of quelling a riot or insurrection.
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5—Right to liberty and security1.
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:(a)
the lawful detention of a person after conviction by a competent court;(b)
the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;(c)
the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;(d)
the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;(e)
the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;(f)
the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.2.
Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.3.
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.4.
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.5.
Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
Article 6—Right to a fair trial1.
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.2.3.
Everyone charged with a criminal offence has the following minimum rights:(a)
to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;(b)
to have adequate time and facilities for the preparation of his defence;(c)
to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;(d)
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(e)
to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 7—No punishment without law1.
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.2.
This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
Article 8—Right to respect for private and family life1.
Everyone has the right to respect for his private and family life, his home and his correspondence.2.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 9—Freedom of thought, conscience and religion1.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.2.
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.1.
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.2.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11—Freedom of assembly and association1.
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.2.
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Article 14—Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
10.3 Potential Consequences of the HRA on the Criminal Law
Throughout this book we will mention the potential impact of the HRA on specific offences. But here we will consider some of the general principles of the ECHR which will affect the whole of the criminal law.
The state is permitted under the ECHR to create criminal offences which interfere with citizens’ Convention rights, such as rights to private and family life (Article 8) and freedom of expression (Article 10), but only if the interferences are in accordance with a ‘law’. The European Court of Human Rights (ECtHR) has interpreted ‘law’ in an interesting way.126 p. 41↵A rule can be a law only if it is defined with sufficient precision to enable the citizen to know how to behave in accordance with the law.127 In Hashman and Harrup v UK128 the ECtHR held that the power under English law to bind the defendant to keep the peace on the basis that his conduct was contra bonos mores (‘contrary to the public good’) was so imprecise that it did not amount to a law, and therefore was an impermissible infringement of the individual’s rights.
It should not be thought that a court will readily find that an offence is too vaguely defined to constitute law and hence potentially infringe the European Convention. In Steel v UK129 it was held that the English offence of breach of the peace (defined as ‘when an individual causes harm to persons or property or acts in a manner the natural consequences of which would be to provoke others to violence’) was sufficiently precise to amount to ‘law’. In Tagg130 the Court of Appeal rejected an argument that the offence of being drunk on an aircraft131 was insufficiently precise to amount to a law.
One of the reasons why law must not be too vague is that otherwise it will, in effect, be judges or juries, rather than Parliament, which decide what is criminal. In Jones132 Lord Bingham emphasized that:
an important democratic principle in this country [is] that it is for those representing the people of the country in Parliament, not the executive and not judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties.
Burden of proof
Most members of the public know that under English and Welsh criminal law a person should be presumed innocent unless proved guilty.133 Lord Sankey LC in Woolmington v DPP134 declared that ‘throughout the web of the English criminal law one golden thread is always to be seen—that it is the duty of the prosecution to prove the prisoner’s guilt’. The principle is justified on the basis that the consequences of a conviction and punishment are so severe that the state prefers to run the risk of acquitting people who may in fact have committed the offence than convicting people who are in fact innocent. The principle also reflects the fact that the prosecution will have all the resources and power of the state on its side, while the defendant will usually have comparatively limited resources.
The reality is that the presumption of innocence is honoured more in the breach than the observance. Even of the more serious offences which are triable in the Crown Court, 40 per cent include some form of departure from the presumption of innocence, according to Andrew Ashworth and Meredith Blake.135 Lord Steyn in Lambert136 found that 219 of the 540 offences then triable in the Crown Court had provisions which required the defendant to prove their innocence. A common way of departing from the presumption is to create strict liability offences (where it is necessary to prove only that the defendant caused p. 42↵a particular result or state of affairs, and it is not necessary to show that the defendant had a particular state of mind or even behaved unreasonably). Many such offences then have a defence of ‘due diligence’ or ‘no intent’ for which the defendant is obliged to produce evidence.
Any departure from the presumption of innocence must now be considered in the light of the HRA. The presumption of innocence is reinforced by Article 6(2) of the ECHR, which declares: ‘Everyone shall be presumed innocent until proved guilty according to the law.’ However, perhaps surprisingly, the ECtHR has not interpreted that article as strictly as it might. The Court’s approach in Salabiaku v France137 and Phillips v UK138 is that presumption of guilt or the placing of the burden of proof on the defendant does not contravene Article 6 if it is confined within ‘reasonable limits’. The House of Lords examined the issue in Kebelene139 and held that the key issue was the difference between persuasive and evidential burdens of proof:
A persuasive burden of proof means that the party must prove the matter at issue.
An evidential burden of proof means that the party must introduce sufficient evidence to establish the reasonable possibility that a particular issue is true.
For example if D faces a charge of assault and wishes to raise the defence of duress, D has an evidential burden of establishing some evidence to show that he might have been acting under duress. If they introduce some evidence to show that that might be true, the prosecution has the persuasive burden of proof of showing beyond reasonable doubt that the defendant was not acting under duress.
The House of Lords in Kebelene140 explained that reverse burdens of proof were more likely to be compatible with Article 6 if they were evidential rather than persuasive burdens. The court will need to consider the relative difficulty of proving the relevant matter for the defendant and the prosecution, and the seriousness of the threat at which the criminal offence is directed. In other words, a persuasive burden will be justifiable only if it involves an issue which is very easy for the defendant to establish (e.g. to prove that they have a licence to perform the activity)141 or the burden is necessary for the protection of the public. Therefore, in the light of the HRA, section 3, any statutory burden of proof on the defendant would be interpreted to be evidential if at all possible.142 It will be interpreted as a persuasive burden only if there is a ‘pressing necessity’143 for there to be a persuasive burden.
Sheldrake v Director of Public Prosecutions; Attorney-General’s Reference (No. 4 of 2002)
 1 AC 264
Two cases concerning burdens of proof were heard by the House of Lords together. In the first Peter Sheldrake was charged with the offence under section 5(1)(b) of the Road Traffic Act 1988 of being in charge of a motor vehicle after having consumed so much p. 43↵alcohol that the proportion of it in his breath exceeded the prescribed limit. He sought to rely on the defence under section 5(2), which cast upon the defendant the legal burden of proving that there was no likelihood of his driving the vehicle while over the limit. He was convicted by the magistrates. He argued before the House of Lords that this burden of proof was not compliant with the presumption of innocence guaranteed by Article 6(2) of the ECHR.
In the Attorney-General’s Reference case, the defendant was charged with belonging to a proscribed organization contrary to Section 11(1) of the Terrorism Act 2000. He sought to rely on the defence in Section 11(2) that the organization had not been proscribed at the time when he became a member or professed to be a member of it and that he had not taken part in any of the organization’s activities since it had been proscribed. At the trial the Crown conceded that the defence in Section 11(2) imposed an evidential, but not legal, burden on the defendant. The Attorney General referred to the Court of Appeal the question of whether the defence in Section 11(2) imposed a legal or evidential burden on the defendant and, if a legal one, then whether it was compatible with Article 6(2).
Lord Bingham of Cornhill
[Having reviewed the relevant case law from the ECtHR, Lord Bingham stated:]
21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.
30. Both R v Lambert  2 AC 545 and R v Johnstone  1 WLR 1736 are recent decisions of the House, binding on all lower courts for what they decide. Nothing said in R v Johnstone suggests an intention to depart from or modify the earlier decision, which should not be treated as superseded or implicitly overruled. Differences of emphasis (and Lord Steyn was not a lone voice in R v Lambert) are explicable by the difference in the subject matter of the two cases. section 5 of the Misuse of Drugs Act 1971 and section 92 of the Trade Marks Act 1994 were directed to serious social and economic problems. But the justifiability and fairness of the respective exoneration provisions had to be judged in the particular context of each case. I have already identified the potential consequence to a section 5 defendant who failed, perhaps narrowly, to make good his section 28 defence. He might be, but fail to prove that he was, entirely ignorant of what he was carrying. By contrast, the p. 44↵offences under section 92 are committed only if the act in question is done by a person ‘with a view to gain for himself or another, or with intent to cause loss to another.’ Thus these are offences committed (if committed) by dealers, traders, market operators, who could reasonably be expected (as Lord Nicholls pointed out) to exercise some care about the provenance of goods in which they deal. The penalty imposed for breaches of section 92 may be severe (see, for example, R v Gleeson  1 Cr App R (S) 485), but that is because the potential profits of fraudulent trading are often great.
31. The task of the court is never to decide whether a reverse burden should be imposed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence. It may none the less be questioned whether (as the Court of Appeal ruled in para 52d) ‘the assumption should be that Parliament would not have made an exception without good reason’. Such an approach may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on it by section 3.
Sheldrake v Director of Public Prosecutions
41. It may not be very profitable to debate whether section 5(2) infringes the presumption of innocence. It may be assumed that it does. Plainly the provision is directed to a legitimate object: the prevention of death, injury and damage caused by unfit drivers. Does the provision meet the tests of acceptability identified in the Strasbourg jurisprudence? In my view, it plainly does. I do not regard the burden placed on the defendant as beyond reasonable limits or in any way arbitrary. It is not objectionable to criminalise a defendant’s conduct in these circumstances without requiring a prosecutor to prove criminal intent. The defendant has a full opportunity to show that there was no likelihood of his driving, a matter so closely conditioned by his own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities that he would not have been likely to drive than for the prosecutor to prove, beyond reasonable doubt, that he would. I do not think that imposition of a legal burden went beyond what was necessary. If a driver tries and fails to establish a defence under section 5(2), I would not regard the resulting conviction as unfair, as the House held that it might or would be in R v Lambert  2 AC 545. I find no reason to conclude that the conviction of Mr Sheldrake was tainted by any hint of unfairness.
44. I would allow the Director’s appeal, reinstate the justices’ decision and answer the certified question by saying that the burden of proof provision in section 5(2) of the Road Traffic Act 1988 imposes a legal burden on an accused who is charged with an offence contrary to section 5(1)(b) of that Act.
Attorney-General’s Reference (No. 4 of 2002)
54. In penalising the profession of membership of a proscribed organisation, Section 11(1) does, I think, interfere with exercise of the right of free expression guaranteed by article 10 of the Convention. But such interference may be justified if it satisfies various conditions. First, it must be directed to a legitimate end. Such ends include the interests of national security, public safety and the prevention of disorder or crime. Section 11(1) is directed to those ends. Secondly, the interference must be prescribed by law. That requirement is met, despite my p. 45↵present doubt as to the meaning of ‘profess’. Thirdly, it must be necessary in a democratic society and proportionate. The necessity of attacking terrorist organisations is in my view clear. I would incline to hold subsection (1) to be proportionate, for article 10 purposes, whether subsection (2) imposes a legal or an evidential burden. But I agree with Mr Owen that the question does not fall to be considered in the present context, and I would (as he asks) decline to answer this part of the Attorney General’s second question.
Appeal allowed. Order of Divisional Court set aside. Order of Court of Appeal (Criminal Division) affirmed in regard to the first question referred and set aside in regard to the second question referred. Defendant’s costs on reference in Court of Appeal and House of Lords out of Central Funds.
In the following extract, Ian Dennis usefully summarizes the current state of the law:
I. Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’  Criminal Law Review 901 at 912–17
The first stage of the decision-making process deals with the question whether a statute imposes a burden of any kind on the defendant, and, if so, whether it is a legal or an evidential burden. This question is settled by ordinary principles of statutory construction. … If the burden is an evidential one no problem of compatibility with Art.6 arises. If the burden is a legal one, the issue of compatibility must be considered.
The second stage of decision-making requires a court to decide the issue of compatibility according to whether the reverse onus (legal burden) is justified as a proportionate measure in pursuance of a legitimate aim. It is at this stage that the main problems and uncertainties arise. The debate is almost entirely about proportionality, but analysis of the case law shows considerable disagreement and inconsistency about the use of one or more of six relevant factors in determining this question. If no broader principles for applying the relevant factors can be identified, the decisions as to the justifiability of particular reverse onuses will continue to resemble a forensic lottery. A search for principle suggests that issues of moral blameworthiness should be proved by the prosecution. These issues will include, in addition to the relevant prohibited acts, any requisite culpable mental states, any objective fault such as negligence, and the unavailability of any common law defences raised by the defendant. Exceptionally, legal burdens can be placed on defendants to prove formal qualifications to do certain regulated acts, and in cases where the defendant accepts the burden of proof of exculpation by virtue of voluntarily participating in a regulated activity from which he intends to derive benefit. …
If the reverse onus is justified as proportionate to a legitimate aim no further decision is necessary. If it is not justified according to these criteria the third stage of decision-making requires the court to read down the legal burden to an evidential burden if it is possible to do this using s.3 of the HRA. On the basis of Sheldrake it seems that it will almost always be possible to do this; it is hard to envisage a case that would not come within the scope of Lord Bingham’s reasoning. Accordingly a declaration of incompatibility of a reverse onus will almost never be necessary.
In R v G146 a 15-year-old boy had sexual intercourse with a girl who was aged under 13. The case proceeded on the basis that the act was consensual. As such he could have been prosecuted either for the offence of rape of a 13-year-old (section 5 of the Sexual Offences Act 2003) or the less serious offence of committing a sexual act with a child (section 13). He was charged and convicted of rape. He appealed to the House of Lords claiming that the charge infringed his rights under Articles 6 and 8.
All of their Lordships agreed that there was no breach of Article 6. That was because Article 6 was concerned with the fairness of the procedure and could not be used to challenge the substantive law.147
Lords Hoffmann and Mance and Baroness Hale held that Article 8 did not cover the decision by a prosecution authority to charge a defendant with one offence rather than the other. Therefore, it did not, in this case, infringe G’s rights to prosecute him under section 5 (rape of an under-13-year-old) rather than the lesser offence under section 13. Lords Hope and Carswell disagreed, holding that to prosecute G for the section 5 offence was a breach of his Article 8 rights.
The impact of the HRA on particular offences
As already mentioned, at many points throughout this book we will consider the impact of the HRA on particular offences. Here just a couple of examples will be given. As the following examples indicate, although defendants may often seek to raise a defence on the basis of the HRA, rarely have they been successful:
Smethurst:148 a defendant charged with the creation of an indecent photograph sought to argue that to convict him of the offence interfered with his right to freedom of expression or right to respect for private life. His argument was rejected.
Taylor:149 a Rastafarian defendant unsuccessfully claimed that to convict him of a drugs offence interfered with his right to religious freedom.
H:150 the Court of Appeal interpreted the defence of reasonable chastisement in a way which was compatible with the victim’s rights under the ECHR.
Concannon:151 the defendant argued that the law on accessories operated unfairly in the context of murder, and that therefore his right to a fair trial under Article 6 was breached. His argument failed, with the Court of Appeal emphasizing that Article 6 concerned the fairness of criminal trials, not the fairness of the law itself.
Rimmington:152 the House of Lords rejected an argument that the offence of causing a public nuisance was too vague to satisfy the requirements of Article 6.
Howitt:153 the Divisional Court rejected a claim that the bar on smoking in pubs in the Health Act 2006 breached articles of the ECHR.
p. 47 DPP v Ziegler:154 the defendants were protesting and were charged with the offence of wilfully obstructing a highway without lawful excuse.155 Had they been able to show they were exercising their rights of freedom of expression or assembly they would have been able to show a lawful excuse. However, on the facts of the case they could not.
11 Critical Criminal Law
In recent times much attention has been paid to critical analysis of criminal law. Critical analysts claim that the attempts of the judiciary and commentators to paint a picture of a law which is rational and logical have failed and that in fact criminal law is replete with irrationality. This reflects political and social tensions within society.156 We have already seen a fine example of critical analysis in Nicola Lacey and Lucia Zedner’s analysis of the general principles of criminal law excerpted in Section 7. Might it not be more useful to look at what makes police officers decide to arrest someone or what really influences juries in order to convict or acquit,157 rather than what the law ‘in the books’ is?
One of England’s leading critical criminal lawyers is Alan Norrie. Here we will extract an analysis of his work by G.R. Sullivan. He focuses on Norrie’s claim that criminal law cannot be just owing to its failure to consider the potential impact of social and economic p. 48↵inequalities in society.158 He challenges Norrie—a challenge the latter often faces—to suggest an alternative criminal law which would be more just. This is a common criticism of critical scholars; they are brilliant deconstructors, but what is to replace the rubble they have created?
G.R. Sullivan, ‘Is Criminal Law Possible?’ (2002) 22 Oxford Journal of Legal Studies 747 at 750–4
Many will agree with Norrie that large inequalities of resources and power are a bad thing and that many civic advantages would flow from establishing a more egalitarian, less materialistic society. The link between social deprivation and the incidence of criminal offending is undeniable. Anyone with the most cursory knowledge of the day to day realities of the criminal justice system will know the questionable nature of many of its decisions and their consequences when assessed in terms of justice and fairness. Norrie argues that if the criminal justice system is to advance the cause of justice for defendants, the grip of the Kantian model must be eased. Norrie does not dismiss as chimeras the Kantian values of autonomy and freedom. He acknowledges that there is a place in moral judgments for responsibility based on personal agency. His argument is that an exclusive stress on personal agency excludes far too much of the whole picture. He emphasizes time and again that conduct is a compound of the social and the personal. Accordingly, the pressures and exigencies of social circumstances and forces should feature in determining criminal liability—a relational account grounded in social reality.
There is considerable force in Norrie’s arguments. Yet it is unclear what consequences for the form and content of the criminal law would be entailed by a relational account. He returns frequently to his contention that the principal role of the criminal law is to maintain the status quo for a society profoundly unequal. This perspective would allow claims that at least certain criminal acts are justified forms of defiance and/or appropriate exercises in distributive justice. A functioning legal order could not accept such claims as the basis of exemption from the norms of the criminal law. Thus his argument moves in the direction of displacing the current legal order. Yet Norrie insists he is not bent on a dismissal of legal ordering and legal values. His project is one of reconstruction, albeit radical reconstruction. In keeping with that, he nowhere claims directly that social disadvantage justifies criminal acts. Indeed, he seems to allow that findings of guilt must be made even within the current dispensation. His position seems to be that social factors should constitute grounds of excuse and that these excuses currently go unheard because of the Kantian model. Thus we are not dealing with a macro rejection of the right of the institutions of an unjust society to condemn and punish. We are within the realm of the micro examination of the circumstances of individuals, the realm of excuses.
Thus Norrie requires a theory of excuse which accommodates the exculpatory force of certain kinds of social circumstances and pressures. Yet the possibility of such a theory is unexamined by Norrie. The link between the macro unfairness of society and the micro circumstances of individuals is not made. There is merely a pervasive assumption that p. 49↵exculpation would frequently follow ipso facto from an holistic appraisal of all the salient circumstances of disadvantaged defendants. Norrie is aware that an holistic appraisal would be very difficult to fit in with any kind of criminal law which aspired to be a rule based system. He seemingly envisages forms of adjudication which reflect systems of popular justice which have emerged from time to time in certain countries, usually in revolutionary or immediate post-revolution times. Norrie’s reconstruction is effectively a dismissal of the possibility of a just and principled criminal law for our current form of liberal capitalist society.
Undeniably, social deprivation has a vast impact on the range and nature of options available to an agent. But, of course, there is more in the mix than the constriction of resources and legitimate opportunities. Family circumstances, maleness and age clearly correlate with the incidence of offending. And yet the majority of socially disadvantaged males under the age of 25 from single parent households are not consistent offenders. Clearly, the particulars of an individual’s psychology and the vagaries of chance and luck are important too. We may be confident that D would not Φ, if he had been placed in different social circumstances, and yet the majority of his contemporaries in similar social and familial circumstances to him do not Φ. Indeed, a focus on the psychological make-up of the individual defendant may open the way for a more destabilizing critique of the foundations of judgments of culpability than the socially orientated account offered by Norrie.
In the past decade, due to developing imaging techniques, remarkable progress has been made into the understanding of the nature of the brain and its processes. It would be foolish to claim that the increase in the scientific understanding of brain processes eliminates the possibility of an empirically grounded account of free-will. Indeed, so complex is the brain and its processes, a full scientific account of human agency and consciousness may never be had. Yet enough information is already to hand to persuade any open minded person that deterministic accounts of human activities, including complex cerebral activities, cannot be refuted by metaphysics alone.
The criminal law, its agencies, its punitive infrastructure are problematic, overly politicized facets of modem society. If society is too unfair to command the support of the majority of agents subjected to its criminal law, it follows that the norms of the criminal law will be rejected along with other civic obligations. Yet if the calculus is that the civic order of current society is, all things considered, worth preserving, notwithstanding the unfair distribution of goods in that society, the question arises of whether a criminal law can be achieved which combines effectiveness with legitimacy. The fact that any system of criminal law currently conceivable must, perforce, cause significant injustice to least advantaged citizens must be compatible with an all things considered judgment favouring the criminal law’s legitimacy. We must face too the real possibility that the criminal law employs a model of human conduct at variance with the facts of the natural order. These are large caveats, perhaps too large to be set aside. If they are conceded however, central to its legitimacy is whether criminal law is a legal domain or merely a particular form of political decision making.
A particularly influential form of critical theory is critical race theory, which seeks to show how the law can reflect and perpetuate racial hierarchies. There is no doubt that there are serious issues around race and the criminal justice system, just some of which are listed in the next extract.
On stop and search, between 2018 and 2019 “black people had the highest stop and search rates in every police force area for which there was data”. And yet, for example, “the ‘find’ rate for drugs is lower for black than white people suggesting drug searches on black people may be based on weaker grounds for suspicion than those on white people”.
Arrest rates are also “generally higher across minority ethnic groups in comparison to the white groups”, and “a disproportionate number of people from BAME communities (and those with mental health concerns) have died following the use of force”, with the “proportion of BAME deaths in custody where use of force is a feature being over two times greater than it is in other deaths in custody”.
BAME defendants are consistently more likely to plead not guilty than White defendants which leads to BAME defendants who are convicted getting longer sentences, having lost any reduction for plea.
BAME defendants are disproportionately prosecuted for indictable offences in the Crown Court. The rate of prosecutions for such offences for Black defendants is four times higher, and for mixed ethnic defendants two times higher than for White defendants.
(Interestingly, research into jury conviction rates in England and Wales shows that the one stage in the criminal process where people from BAME backgrounds appear not to be disproportionately treated is when a jury is asked to reach verdict, in part because, as the Lammy Review observed, jury group decision-making through open discussion deters and exposes prejudice or unintended bias.)
In sentencing, the Sentencing Council analysis of data relating to cases of possession with intent to supply a class A or class B drug showed that the odds of receiving an immediate custodial sentence for Asian (and other minority ethnic) offenders were each 50 per cent higher than the odds for White offenders, and that the odds of a Black offender receiving an immediate custodial sentence were 40 per cent higher than the odds for a White offender.
The prison population in 2019 included 26.9% BAME prisoners (compared to people of BAME backgrounds representing 14% of the general population). Perhaps most strikingly: “over 40% of young people in custody in the UK are from BAME backgrounds”. In the UK Black people constitute 3% of the population but 12% of the prison population. That disproportionality is greater even than in the US where Black people constitute 13% of the population and 35% of the prison population.
There are also disparities in the proportions of members of racial groups who are the victims of crime, and in the impacts of particular criminal laws, e.g. the “joint enterprise” doctrine and knife offences.
Awareness of these inequalities opens up new ways to critique the criminal justice system. These are summarized in the following extract by Bennett Capers.
B. Capers, ‘Critical Race Theory’ in M. Dubber and T. Hörnle (eds) The Oxford Handbook of Criminal Law (Oxford: OUP, 2014), 26
[Critical Race Theory (CRT) is] … committed to challenging racial hierarchy, and indeed hierarchy and subordination in all of its various forms. To that end, CRT insists on progressive race consciousness, on systemic analysis of the structures of subordination, on the inclusion of p. 51↵counter-accounts of social reality, and on a critique of power relationships that is attentive to the multiple dimensions on which subordination exists. Beyond this, a review of the key writings that formed the movement reveals some recurring themes and tenets. First, that “formal,” color-blind laws often serve to marginalize and obscure social, political, and economic inequality. Secondly, that legal reforms that ostensibly benefit minorities occur only when such reforms also advance the interests of the white majority, a requirement most often referred to as “interest convergence.” Thirdly, that race is biologically insignificant; rather, the concept of race is, to a large extent, socially and legally constructed. Fourthly, CRT rejects crude essentialism and recognizes that oppression and subordination operate on multiple axes. For example, a black working-class lesbian in one part of the United States likely experiences oppression differently than a black male investment banker in another part of the United States. Fifthly, that race is often elided in the law; much CRT thus involves making race visible, or as I have described it elsewhere, “reading black.” While there is no one methodology in CRT, much of the literature incorporates personal narrative, or what is often referred to as “legal storytelling.” In addition, in the past decade, CRT scholars have increasingly turned to research on implicit biases to support their claims.
12 Feminist Legal Thought
Feminist analysis has proved a powerful influence on the study of criminal law.159 Much work has been done on highlighting injustices to women within the criminal justice system. Consider, for example, the following indictment of the criminal justice system:
Domestic violence accounts for a quarter of all crime, and yet only 5% of recorded cases of domestic violence end in conviction, less than 20% of rapes and sexual assaults are reported p. 52↵to the police, and less than 6% of rapes result in conviction. There are now over 4,500 women in prison, an increase of 194% in the last ten years. Most women are convicted of non-violent offences, such as shoplifting. One woman out of 12 judges in the House of Lords, five women out of 43 police Chief Constables, 18 women out of 42 Chief Officers of Probation, seven women out of 42 Chief Crown Prosecutors, 31 women out of 138 Prison Governors. There was evidence of sexual harassment and discrimination experienced by women working in the system.160
It should be noted that of the just over 4,000 women in prison over half are themselves the victims of domestic violence and over a third have suffered sexual abuse.161 Feminists have expressed concern that too often women who are in an abusive relationship end up being convicted of crimes they are coerced to do by their abusers.162
It must not be thought that feminism’s sole contribution is to point out examples of gender stereotyping amongst the judiciary or lawyers (rape cases are replete with these) or examples of where the law unjustifiably treats men and women differently (coercion may be an example of this in that it is available as a defence for wives but not husbands). As the following extracts by Nicola Lacey and Prabha Kotiswaran suggest, there is much more to a feminist perspective than this:
N. Lacey, ‘General Principles of Criminal Law? A Feminist View’ in D. Nicolson and L. Bibbings (eds) Feminist Perspectives in Criminal Law (London: Cavendish, 1996), 92–9
Probably the most distinctively feminist objection to the idea of criminal law as based on general principles lies, however, in the claim that generalisations—appeals to universally valid categories or concepts—tend to obscure important differences between persons, actions or situations. From a liberal point of view, for example, the move from the standard of a ‘reasonable man’ to that of a ‘reasonable person’ is an advance. But feminists may question whether the abstract person is implicitly understood in terms of characteristics, contexts and capacities more typical of men’s than of women’s lives and, moreover, is so understood in generalised terms which render exposure of sex/gender issues yet more difficult than in the days of sex-specific language.
This argument comes in more and less radical forms. The more radical version is summed up by Catharine MacKinnon’s witty comment that ‘I refer: to women and men because you don’t see many persons around’. MacKinnon implies that sex/gender is such a fundamental feature of human identity that the idea of a gender-neutral subjectivity simply makes no sense. This might be taken to mean that the very idea of a standard of ‘reasonableness’ engages in a totalising discourse, flattening out relevant differences between persons and contexts and brutally assimilating the vast array of human difference to a specific norm. Of course, this is not an exclusively feminist argument: it can be (and has been) reproduced around other indices of differentiation, such as ethnicity or class. But it is an argument which has been of sufficient salience in feminist thought to count as one of the distinctive questions posed by feminist scholarship for the general principles.
p. 53There are two reasons, however, why this argument fails to generate an entirely convincing critique of the substance of criminal law’s general principles. In the first place, the argument proves too much; if it were genuinely persuasive, it would undermine all forms of generalisation, feminist analysis and other forms of critical social theory included. Secondly, a strong form of the argument entails a decisive objection not only to the idea of criminal law as based on general principles, but also to the very idea of criminal law, which is, inevitably, in the business of applying general standards across a range of persons and in a variety of situations. This, of course, does not mean that key political questions about proper respect for relevant differences of history or circumstance do not arise for criminal law. But it does suggest that the implementation of substantive offences and rules of evidence, rather than the general principles, should be the primary object of critical attention. This is because the contextual factors which may be normatively relevant to the application of a general standard to a particular case need to be understood in relation to the types of situation in which they arise.
… [A]nother promising ground for feminist analysis lies in the normative aspect of the appeal to general principles. The post-enlightenment vision of responsible human agency which underpins the normative appeal of the general principles is one which was thought valid for women considerably later than for men. Arguably, the gradual recognition of women’s agency represents the crowning triumph of feminism’s immanent critique of liberalism. Nonetheless, there remains a significant and disturbing difference of degree in the willingness to interpret women’s behaviour as the product of psychological or medical pathology, rather than responsible choice. This point is underscored by Allen’s excellent Justice Unbalanced, a study which demonstrates sentencing courts’ willingness to interpret female offending as the product of mental disorder and a corresponding unwillingness so to interpret male offending.
It is often argued, however, that liberal legal orders conjure up an inappropriately atomistic vision of the social world—a world peopled by competitive individuals whose relations with one another are structured primarily or even exclusively by the pursuit of self-interest. And some feminists have argued that this vision of the social world has particularly baleful implications in marginalizing the relations of care, nurturing and reciprocity which have, as a matter of history, been more central to women’s lives than to men’s. Interestingly, this is a less salient feature of criminal law than of, say, contract law; criminal law is, after all, in the business of articulating reciprocal responsibilities. One might argue, on the other hand, that the inexorable shift towards subjectivism as the dominant interpretation of the general principles reinforces an individualistic and decontextualised interpretation of human behaviour. By contrast, the reasonableness test, whose allegedly ‘objective’ nature has been controversial among some feminists, is anything but atomistic. It is, at root, all about a vision of the obligations which human beings owe to one another. Yet again, important feminist questions are likely to arise not merely about the content of these obligations, but also about the kinds of evidence which should be relevant to determining whether they have been breached and about the law’s proper response where those obligations have a radically unequal impact on women and men.
Sexing the Subject of Criminal Law?
In recent years, feminist criminal law theory has shifted away from questions about how a pre-existing category, ‘women’, are treated (or ignored) by legal doctrine in favour of questions about legal doctrine’s dynamic role in constituting women and men as legal and social subjects. This shift was presaged in Cousins’ argument that: ‘[A feminist approach] p. 54↵must analyse how particular legal forms of agency are more or less implicated in the organization of sexual difference and what effect they have on that differentiation.’ A good example of this sort of approach is Ngaire Naffine’s analysis of the law of rape, which traces a particular and highly sexually differentiated conception of heterosexual relations, even into the ‘post-feminist’, gender-neutral reconstructed Australian sexual assault provisions. Similarly, one could interpret the critical analysis of the immediacy requirements structuring self-defence and of the loss of self-control model of provocation as contributions to this more recent project.
This sort of argument engages directly with aspects of the general principles of criminal law; it exposes the assumptions which underlie allegedly general concepts, such as consent, belief, foresight or reasonableness and reveals the ways in which they are implicated in the constitution of sexually differentiated social relations. But, crucially, it does so not merely in terms of engagement with the general principles themselves, but rather in terms of the combined effects of a number of much more concrete factors. These include not only widely applied concepts, but also the substance of particular offences; the nature of the time frame and the breadth of the social context defined as relevant by rules of evidence; and the context in which offences are interpreted. Only in relation to this broader set of factors can a specifically feminist analysis of aspects of the general principles be realised. A good example is the well known argument about criminal law’s reflection of a dualistic view of human beings as divided between the mental and the material, between mind and body, which is vividly reflected in the distinction between actus reus and mens rea. This, along with the understanding of mens rea in terms of capacities of reason, understanding and self-control has been argued to have distinctively feminist implications. The strong cultural association of men and the masculine with the mind and with reason, and of women and the feminine with the body and with emotion, inevitably, so the argument goes, constructs women as nonstandard subjects of the rationalist discourse of criminal law.
This is a potentially important insight, but it takes on different complexions according to the context in which it is deployed. It might be argued that the contemporary theoretical emphasis on mental conditions of responsibility—on culpability, rather than harmful conduct—indeed reflects a highly gendered world view, in which the standard model of responsible behaviour is implicitly marked as masculine. Ironically, this might be taken to imply a greater willingness to regard men as potentially criminally responsible and hence to prosecute and punish them. In the context of rape law, the emphasis on the mental linchpin of consent implies something rather different: the doctrinal marginalisation of the embodied aspect of the wrong. At the level of defences based on mental incapacities, it might be expected to lead to a marginalisation of women’s full responsibility. These are, of course, questions which are susceptible of empirical research.
In order to interpret the feminist significance of the conceptual building blocks out of which criminal liability is constructed, we therefore have to contextualise those building blocks within the actual offences which they help to create. And, as analysis of the law of rape illustrates, one of the most important issues in tracing criminal law’s ‘implication in the organisation of sexual difference’ will be the relevant rules of evidence, which shape the relevant context and time frame within which the subject is conceptualised. The sexing of criminal law’s subjects—indeed, their subjectification—happens in the enactment and interpretation of substantive offences and of the rules of evidence. Though certain aspects of criminal law’s normative ideals or conceptual framework may be more often implicated in the construction of sexual difference than are others, their significance varies dramatically across the offences p. 55↵and defences. A dynamic analysis of criminal law’s role in maintaining sexual difference is likely to be obstructed, therefore, by the contemporary scholarly practice of placing primary emphasis on the general part.
Finally, it is important to notice that the contours of the general principles, focused as they are on the construction of criminal liability, form an unduly narrow basis for an evaluation of criminal law’s sexing of its subjects. For, as feminist analyses of the operation of the law of rape demonstrate, criminal law’s constitution of sexed subjects relates not only to defendants, but also to victims and witnesses in the criminal process. To take a doctrinal example, the sexually differentiated position of the incest victim tells us something just as important as the sexually-specific definition of the incest offender’s conduct. An adequate feminist analysis of criminal law could never, therefore, confine itself to the conceptual framework or normative underpinnings of liability.
P. Kotiswaran, ‘Feminist Approaches to Criminal Law’ in M. Dubber and T. Hörnle (eds) The Oxford Handbook of Criminal Law (Oxford: OUP, 2014), 60–2
[T]he reach of the feminist project in criminal law is extensive. One only has to consider the compulsory first-year criminal law curriculum to get a sense of likely arenas for feminist intervention. Teaching English criminal law, one can hardly fail to note early on in the law of causation, that the cases of Steel and Malcherek are about women who were murdered because they refused the sexual advances of male defendants. Feminists have contributed to theorizing the duty of care in the context of omissions liability. Dubois Pedain has drawn on care feminism to criticize decisions like R. v. Bland and argue that viewed through the lens of “care morality,” the doctor–patient duty of care might well exceed the demands of the criminal law and its “stranger morality.” Other feminists have interrogated the extent to which specific offenses, like homicide, rape, and grievous bodily harm reflect women’s experiences. Seizing upon the contingency of the common law and the inability of outdated statutes to deal with domestic violence, for instance, English feminists have argued that a husband be held guilty of constructive manslaughter when his severely mentally abused wife commits suicide after being physically assaulted by him. They have energetically sought to reconfigure defenses such as provocation, diminished responsibility, and self-defense in the interests of female offenders. …
Feminist energy so far has not, however, been expended only on these turgid matters of first-year criminal law doctrine but has significantly contributed to a steady expansion of the remit of the criminal law, as it relates to the spheres of the family and the market. The feminist critique of the public–private divide within criminal law has led to the conceptualization of private harms such as child abuse, marital rape, date rape, homosexual rape, and domestic violence in terms of crime, leading to the creation of new offenses. …
In the United States and the United Kingdom, feminists have been successful in pushing forth legislation on a range of public harms against women such as sexual harassment, pornography, prostitution, voyeurism, rape, and stalking. Feminists have also been instrumental in re-envisioning how the criminal law relates to the market by delineating the conditions under which exploitative labor conditions can be prosecuted as trafficking. Implicit in this are judgments about the types of labor that may qualify as legitimate work.
p. 56Many feminists have pointed to the obvious, but too easily forgotten, fact that men are responsible for the vast majority of crimes.163 Men’s violence against women and children is often denied or legitimated within society.164 The study of male violence has led to an increase in interest in masculinity and what it is that creates such a strong link between the male identity and the commission of crime.165 As Ngaire Naffine points out: ‘[M]en have been the only real subjects of concern to criminal law; that men have also been conflated with the entire population of person of interest. The persons of criminal law, around whom rights and duties have clustered, have been thought of as men.’166 This means, she argues, that ‘the systematic uses of women by men, aided and counselled by criminal law, have … not been acknowledged as systematic in their nature’. In this passage she talks further about the models of self the law depends upon:
N. Naffine, ‘The Characters of Criminal Law’ in I. Solanke (ed) On Crime, Society, and Responsibility in the Work of Nicola Lacey (Oxford: OUP, 2021), 55–6
Two main characters are conjured up in criminal law theory.
The dominant figure in the canon is the criminal actor understood as a freestanding individual to whom responsibility can be properly assigned in a court of law, and who can be treated as an autonomous unit, snipped out of his time and place and group affiliations, with their associated criminal proclivities, or law-abiding tendencies. This is a (deliberately and knowingly) thinly conceived individual, abstracted, and posited as universal and ahistorical, but actually historically liberal, in that he is taken to be a rational choosing agent. Hence an idea of human beings, located in place and time, is assumed, even within this thin model of the person. I shall call him Model 1.
Then there is the demographic or social model of the criminal person. Here our disciplinary characters are treated as members of a population that have certain criminal or law-abiding propensities rather than as separate distinct autonomous individuals, treated on their own, each making up their own mind about whether to offend. With the demographic model, the person has socially made inclinations and tendencies. And they come in categories of persons which represent real concerns for the state and impose an obligation on the state to offer an effective and tailored response. Here men and women immediately come to mind as they are so different in their patterns of offending.
Those who subscribe to this second model tend to be thinking of real historical and social people, located in places and contexts, as well as people with bodies and sexes whose population membership behaviour is of practical concern to the criminal law, though criminal law is generally loath to express this, that is to specify its people of interest, preferring laws of generality. Again, they are thinking of men and women, people with a class, an age, a race, a group set of beliefs. Here the person is understood as a member of a group, of a population, possessing characteristics which matter to criminal law. I shall call this Model 2.
Most criminal laws operate on the basis of a Model 1 person, with an individual without social characteristics or context. Generally speaking criminal law does not treat its subjects as members of a group or class of concern. Its prohibitions are explicitly directed at so- called ‘persons’ or ‘individuals’.
Theories of why we punish offenders are crucial to the understanding of criminal law.167 Knowing why we punish people can assist us in knowing what offences should be criminal. After all there is little point in finding guilty of offences people who we do not think deserve any kind of punishment.
In fact, it is not easy to define punishment.168 Why do we regard the payment of taxes as not a punishment: is it really different from a fine? Is detention under the Mental Health Act 1983 different from imprisonment? There is, not surprisingly, no agreement over what exactly punishment is. It is generally thought to contain some of the following elements:169
It must be unpleasant.
It is inflicted by the state.
It is imposed on those who have broken the law.
Its purpose is not to compensate the victim.
It carries censure of what the defendant did.
p. 58The starting point is that punishment is something that requires strong justification.170 For the state to deprive a citizen of their liberty by detaining them in prison is a huge invasion of a citizen’s basic rights and requires the best of reasons.171
Theories of punishment can be broken down into those which are consequentialist (that claim that there are good consequences that result from punishment and therefore justify it) and those which are non-consequentialist (that claim that there are other reasons apart from its consequences which justify punishment). As can be imagined, a whole book could easily be written on the theories of punishment and here the topic can only be covered in outline.172
13.1 Consequentialist Theories of Punishment
Consequentialist justifications include the following:
Personal deterrence By punishing the offender they will be deterred from committing a crime again.173
General deterrence By punishing the offender the general public (and particularly those of a criminal bent), on learning of the punishment, will be deterred from committing offences.174 This may be directly (a person deciding not to commit a crime for fear of the punishment) or indirectly (the law and punishment may affect the moral attitudes of society, which thereby leads to people not taking up crime).175
Rehabilitation The punishment may reform and educate the offender so that they do not commit an offence again.176
Incapacitation The offender is removed from society (by imprisonment) and so prevented from causing (for a period of time) more harm to society.177
Restorative justice There are two main versions of this theory. One focuses on the notion that the response of the criminal law should be analogous to conflict resolution. The criminal law should seek to mediate and mend the broken relationship between the victim and the offender. The other aims to compensate the victim for the wrong done. The link between these themes is that they seek to undo or rectify the harm or some of the harm done by the defendant to the victim.178
Critics of consequentialist theories claim that they can lead to injustice. They could lead to one offender receiving a far longer sentence than they deserved in order to deter others from committing a crime, or to reform the offender themselves. Imagine that researchers told the Home Secretary that if she announced that every year ten people who had been convicted p. 59↵of theft would be selected at random and have their hands cut off, this would reduce the number of thefts by half. This research would still not justify the cutting off of the hands of the unlucky few involved.
There are also objections that in fact punishment does not achieve the desired aims. For example:
There is little evidence that imprisonment deters offenders from reoffending.179
The evidence that people can be reformed is inconclusive.180
There is even evidence that prison may make people more likely to commit offences on their release.181
These points, however, should not mean that the consequentialist theories must be abandoned. It may be, for example, that better systems of treating prisoners may improve the reformation rates.182 Or, if conviction rates were higher, it might be that the deterrent effect of punishment would be more effective.
13.2 Non-Consequentialist Theories
The most popular non-consequentialist theory is retributive theory.183 This is that, quite simply,184 punishment is justified because the offender deserves it.185 It is good in and of itself to punish, regardless of any consequences of the punishment. Through punishment, the law treats people as human beings who are able to make choices and take the consequences of those choices.186 To some retributivists punishment is linked to a concept of the offender paying their dues to society. Having suffered the penalty, the offender can return to society as a fully acceptable member. To others an offender has gained an unfair advantage over law-abiding citizens by breaking the law, and this needs to be removed by imposing the burden of a punishment.187 This last theory has difficulties in the context of serious crime. It is uncomfortable saying that a rapist has gained an advantage by raping.
Retributive theories would also indicate that the level of punishment should reflect the amount of punishment the offender deserves. This seems obvious, but it is significant in that it means that a person should not be given a longer sentence than they might otherwise receive on the basis that to do so would be for their own good, or for society’s good. We should therefore not, for example, impose an especially high sentence on people who have stolen a mobile phone in order to discourage others from stealing, or imprison shoplifters just in order to ensure they receive treatment for their drug addiction. In both these cases, we would be imposing a higher sentence than their crimes deserve. Rather, what should be done is to impose a sentence which is proportional to the wrong they have done.188
Another non-consequentialist theory of punishment is that punishment is an expression of censure (see the extract at What is a crime?, p.2). Punishment expresses the denunciation p. 60↵by society of the kind of conduct done by the offender.189 This helps to promote social cohesion and channels public outrage, thereby avoiding vigilantism. This theory provides a clear explanation of why taxation is not equivalent to a fine: a fine, but not a tax demand, carries with it condemnation of the actions of the recipient. The difficulty with the censure theory is that it does not explain why it is necessary to impose a punishment in order to do the censuring task.190 The censure theory is seen by one of its chief proponents as complementary to retributivism:191
M. Moore, ‘The Moral Worth of Retribution’ in A. von Hirsch and A. Ashworth (eds) Principled Sentencing (Oxford: Hart, 1998), 153–4
Retributivism is a very straightforward theory of punishment: we are justified in punishing because and only because offenders deserve it. Moral culpability (desert) is in such a view both a sufficient as well as a necessary condition of liability to punitive sanctions. Such justification gives society more than merely a right to punish culpable offenders. It does this, making it not unfair to punish them, but retributivism justifies more than this. For a retributivist, the moral culpability of an offender also gives society the duty to punish. Retributivism, in other words, is truly a theory of justice such that, if it is true, we have an obligation to set up institutions so that retributivism is achieved.
[Moore then turns to defend retributivism from two common criticisms:]
1. First and foremost there is the popularly accepted belief that punishment for its own sake does no good. ‘By punishing the offender you cannot undo the crime’, might be the slogan for this point of view. I mention this view only to put it aside, for it is but a reiteration of the consequentialist idea that only further good consequences achieved by punishment could possibly justify the practice. Unnoticed by those who hold this position is that they abandon such consequentialism when it comes to other areas of morals. It is a sufficient justification not to scape-goat innocent individuals, that they do not deserve to be punished; the injustice of punishing those who did not deserve it seems to stand perfectly well by itself as a justification of our practices, without need for further good consequences we might achieve. Why do we not similarly say that the injustice of the guilty going unpunished can equally stand by itself as a justification for punishment, without need of a showing of further good consequences? It simply is not the case that justification always requires the showing of further good consequences.
Those who oppose retributivism often protest at this point that punishment is a clear harm to the one punished, and the intentional causing of this harm requires some good thereby achieved to justify it; whereas not punishing the innocent is not a harm and thus does not stand in need of justification by good consequences. Yet this response simply begs the question against retributivism. Retributivism purports to be a theory of justice, and as such claims that punishing the guilty achieves something good—namely, justice—and that therefore reference to any other good consequences is simply beside the point. One cannot defeat the central retributivist claim—that justice is achieved by punishing the guilty—simply by assuming that it is false.
p. 61The question-begging character of this response can be seen by imagining a like response in areas of tort, property, or contract law. Forcing another to pay tort or contract damages, or to forgo use and possession of something, is a clear harm that corrective justice theories of tort, promissory theories of contract, or natural right theories of property are willing to impose on defendants. Suppose no one gains anything of economic significance by certain classes of such impositions—as, for example, in cases where the plaintiff has died without heirs after his cause of action accrued. ‘It does no good to force the defendant to pay’, interposed as an objection to corrective justice theories of tort, promissory theories of contract, or natural right theories of property simply denies what these theories assert: that something good is achieved by imposing liability in such cases—namely, that justice is done.
This ‘harm requires justification’ objection thus leaves untouched the question of whether the rendering of justice cannot in all such cases be the good that justifies the harm all such theories impose on defendants. I accordingly put aside this initial objection to retributivism, relying as it does either on an unjustifiable discrimination between retributivism and other deontological theories, or upon a blunderbuss assault on deontological theories as such.
2. A second and very popular suspicion about retributive judgments is that they presuppose an indefensible objectivism about morals. Sometimes this objection is put metaphysically: There is no such thing as desert or culpability (Mackie, 1982). More often the point is put as a more cautious epistemological modesty: ‘Even if there is such a thing as desert, we can never know who is deserving’. For religious people, this last variation usually contrasts us to God, who alone can know what people truly deserve. We might call this the ‘don’t play God’ objection.
A striking feature of the ‘don’t play God’ objection is how inconsistently it is applied. Let us revert to our use of desert as a limiting condition on punishment: We certainly seem confident both that it is true and that we can know that it is true, that we should not punish the morally innocent because they do not deserve it. Neither metaphysical scepticism nor epistemological modesty gets in our way when we use lack of moral desert as a reason not to punish. Why should it be different when we use the presence of desert as a reason to punish? If we can know when someone does not deserve punishment, mustn’t we know when someone does deserve punishment? Consider the illogic in the following passages from Karl Menninger (1968):
It does not advance a solution to use the word justice. It is a subjective emotional word … The concept is so vague, so distorted in its applications, so hypocritical, and usually so irrelevant that it offers no help in the solution of the crime problem which it exists to combat but results in its exact opposite—injustice, injustice to everybody. (10–11)
Apparently Dr. Karl knows injustice when he sees it, even if justice is a useless concept. Analogously, consider our reliance on moral desert when we allocate initial property entitlements. We think that the person who works hard to produce a novel deserves the right to determine when and under what conditions the novel will be copied for others to read. The novelist’s labour gives him or her the moral right. How can we know this—how can it be true—if desert can be judged only by those with godlike omniscience, or worse, does not even exist? Such scepticism about just deserts would throw out a great deal that we will not throw out. To me, this shows that no one really believes that moral desert does not exist or that we could not know it if it did. Something else makes us suspect our retributive judgments than supposed moral scepticism or epistemological modesty.
One very influential theory, propounded by Herbert Hart, has sought to mix both consequentialist and non-consequentialist theories together. He relies on a retributivist theory in order to explain who should be punished and a consequentialist theory to explain how people should be punished. In other words, only those who deserve punishment should be punished, but the form of punishment can be decided on the basis of the consequentialist aims of deterrence, incapacitation, or reform.
Of course, a conviction is not the end of the trial. If there is a conviction, the judge still needs to go on to consider the appropriate sentence to be imposed. In the following extract, Alan Norrie192 has noted that the flexibility in matters of sentencing is in marked contrast to the ‘strictness’ of the criminal law. Although the jury get to decide whether the defendant is guilty or not, it is the judge who determines sentencing and has considerable flexibility in doing so. It is, therefore, understandable that several commentators193 have argued that criminal law can only be properly understood by having a secure grasp of not only the definition of criminal offences but also criminal procedure and the law on sentencing. That would certainly be an ideal, but for students it would mean that criminal law courses would have to last three times as long as they do at present. Also, criminal law textbooks would be even bigger.
Much of our thoughts in recent months have been dominated by the coronavirus pandemic. The use of the criminal law to deal with the pandemic has been fascinating and raises many of the issues discussed in this chapter. It is not helpful to set out the current law as it applies to the virus as that is a very fast-moving area. However, it is possible to draw out some key themes.
First, it is striking how the use of the criminal law, in an emergency, can lead to major interventions in people’s everyday lives. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 covered a wide range of prohibitions, including the following:
People were prohibited from leaving home without a ‘reasonable excuse’.
People were prohibited from staying away from home overnight without a ‘reasonable excuse’.
Gatherings of more than two people were prohibited unless for a limited number of exceptions.
Pubs, bars, and restaurants were required to close, save for any takeaway/delivery services they offered.
People were prohibited from leaving the UK without a ‘reasonable excuse’.
These were significant interferences in people’s day-to-day lives. Although these restrictions have now largely been lifted, they were seen as necessary given the risk to life posed by the virus.
Second, there has been concern at the way that the law has moved at a remarkable pace. The Hansard Society found 493 COVID-19-related statutory instruments being laid before Parliament.194 This meant that it was extremely difficult to keep up to date with the law–something which produces serious rule-of-law concerns. How could a citizen be expected to keep up to date with the latest rules, some of which came into force just a few hours before they were published. The government’s explanation was that the pandemic was a fast-moving emergency and therefore that rapid changes in the law were required.
Third, inevitably the regulations relied on arbitrary lines being drawn between what was and was not permitted. This led to much debate about whether the offences had to be interpreted literally or with a view to the ‘common sense’ behind the provision. Lord Wolfson, Parliamentary Under Secretary of State at the Ministry of Justice, gave the following example:
The original legislation provided that you could not leave your home without a reasonable excuse. That would mean that it wouldn’t be an offence if you left your home to go shopping for necessities, but once you were out, you decided to hold a barbecue on the village green. I would venture to suggest that nobody but a silk from Lincoln’s Inn would take the view that that was permissible. The reason that, if I may say, the ordinary person took the view that obviously that would be against “the law” is because the guidance made it very clear what the aim of all of this was.195
The difficulty is that what is a ‘common sense’ interpretation will vary between people. It has led to claims that laws are being interpreted differently by different police officers. Sir Jonathan Jones has complained:
We have seen inconsistency between different statements, and between different pieces of guidance that have been produced on the law and what the actual text of the regulations p. 64↵says. We have seen different police forces, for example adopt different interpretations and different approaches to enforcement, partly because, as I say, it has been sometimes difficult to know with certainty what the law is actually going to say. None of this, it seems to me, is helpful to confidence in the law and making people understand what is actually required of them and therefore comply with it.196
Ambiguity increased as a result of public statements made by government ministers who sometimes seemed to confuse guidance–which was not legally enforceable but rather a recommendation as to how to behave–with rules the breach of which would amount to a criminal offence. This led the police to later complain that they were put in the difficult position of having to enforce unclear law and guidance. Indeed, a review of the first 44 prosecutions under the Coronavirus Act 2020 found that every single one was incorrectly brought, because of a misreading of the legislation.197
Fourth, criminal law responses to the coronavirus pandemic required a careful balancing of freedom and protection. COVID-19 dramatically shows us that our lives and health are bound up with each other. Decisions I make about what I do can have a profound impact on the health and well-being of others around me. The concept of freedom becomes complex in such cases. Freedom for one person can mean a loss of freedom for others. Allowing free movement during a pandemic will privilege some and allow them to exercise their autonomy but limit the autonomy of others.
16 Concluding Thoughts
This chapter should have demonstrated that the concepts of ‘crime’ and ‘criminal law’ are far less straightforward than might be thought. Indeed, it has proved very difficult to even define what a crime is. Academics have been keen to produce fine-sounding theories seeking to restrict the use of criminal law to those circumstances in which it is absolutely necessary and, where it is needed, to ensure that the response of the criminal law is proportionate and predictable. It should not be surprising that these theories are honoured far more in the breach than the observance. The criminal law is an easy tool for politicians to use to ‘deal with’ politically troublesome issues and provide an easy way to pander to the tabloid press. The criminal law, therefore, although capable of being presented as reflecting certain key philosophical and political principles, more often reflects the rough and tumble of everyday political life.
2 Although sexual behaviour between two women has not been the subject of specific prohibition under the criminal law.
5 Duff (2019: 34).
6 Simester, Spencer, Stark, Sullivan, and Virgo (2016: 2).
7 See J. Edwards (2011), who is concerned that too often the government does not make it clear why something has been made criminal.
8 P. Robinson (2002: 79).
9 See also the problems that arise in seeking to make extremely violent pornography unlawful (Rowbottom 2006).
10 Duff (2011: 126). For criticism, see Edwards and Simester (2017).
11 Duff (2019).
12 S. Howard (2013); Unlock (2021).
13 Unlock (2021).
14 BT (2017).
15 Department of Transport (2020).
17 Home Office (2021a).
19 See Westen (2007) for further discussion.
20 See e.g. Masterson v Holden  1 WLR 1017, where the Divisional Court held that the magistrates were entitled to say that two men kissing were ‘insulting’ passers-by. The defendants were charged under the Metropolitan Police Act 1839, s. 54(13).
23 Card and Ashworth (2000).
24 Chalmers and Leverick (2013); Chalmers, Leverick, and Shaw (2015).
27 See also the use of ASBOs (anti-social behaviour orders) (see Squires (2008), Burney (2005), and von Hirsch and Simester (2006)). See Baker (2007) for a discussion of broader issues surrounding remote harms.
28 Although see von Hirsch and Ashworth (2005) and Koffman (2006) for a discussion of the difficulties in putting this principle into practice.
29 von Hirsch and Jareborg (1991).
30 Herring (2016b).
32 Duff (2007).
34 Duff (2002: 6).
35 J. Gardner (1998a: 211).
38 Law Commission (2008).
39 Editor of the Criminal Law Review (2009).
40 Although for an attempt to revive the argument in favour of the Code, see Lavery (2010).
41 Purchasing a textbook on the criminal law would be much easier!
42 Chambers  EWCA Crim 2467.
45 He describes rules of conduct as having a ‘communicative function’.
47 For criticism of this, see Husak (1999a).
48 Duff (2002: 69).
49 Duff (2002). For arguments against Duff’s view, see Alldridge (2002).
50 Offences Against the Person Act 1861, s. 36.
52 Clarkson (1994).
53 Re A (Conjoined Twins: Medical Treatment)  4 All ER 961 (CA).
54 Although it might be necessary first to repeal the Human Rights Act 1998 (which protects the freedom of speech).
57 Hudson (1994).
59 Herring (2009a) and Fineman (2004).
61 This leads Dan-Cohen (2000) to argue that the concept of dignity, rather than autonomy or welfare, should be the basis of the law.
63 Mill (1991).
64 J. Gardner (1998a: 229) suggests that an activity needs to be both harmful and base or worthless to justify criminalization.
65 Stewart (2009).
66 Tadros (2010).
67 Harcourt (1999).
68 Ferguson (2011).
70  EWHC 3267 (Admin).
71 See Placani (2017); Oberdiek (2009) for discussion.
72 von Hirsch (1996).
73 Baker (2009).
74 Herring (2016b).
75 Howe (1991).
76 Husak (2005a); Duff and Green (2005: 8); and Brudner (1993).
77 See Madden Dempsey (2009b) for a rejection of this view.
78 See the discussions in J. Gardner (2007a); Alldridge (2002).
80 See further Wall (2013).
83 Petersen (2010); Zaibert (2011).
85 Duff (2011).
86 Duff (2011: xvii).
87 Wall (2013).
88 Hörnle (2015).
90 Walker (1987: 148–52).
91 Herring and Madden Dempsey (2010).
92 Honoré (1999).
94 For a powerful statement of subjectivism, see Alexander and Kessler Ferzan (2009).
95 Duff (1990a: 160).
96  AC 341, 352 (emphasis added).
98 Austin (1956:1).
99 S. Edwards (2004); Doak (2003).
100 Or at least has done in all bar a handful of cases.
102 R v A  EWCA Crim 434.
104 Home Office (2019).
105 See Rogers (2006b) for a discussion of this decision-making process.
106 Ashworth and Horder (2013: ch. 1).
107 This is sometimes called ‘plea bargaining’.
108 For an interesting discussion on how the cutbacks in legal aid may affect the advice given by lawyers to their clients on how to plead, see Tata and Stephen (2006).
109 Madden Dempsey (2018).
111  UKHL 45.
112  UKSC 38.
113 CPS (2010). See Daw and Solomon (2010).
115 See Ashworth and Strange (2003); Ashworth (2000a).
117 Re S; Re W  1 FCR 577 (HL), .
118 See Bellinger v Bellinger  UKHL 21 for an example of a case where a declaration of incompatibility was issued.
119 HRA, s. 6(3)(a).
120 Note that s. 3 applies only when the court is interpreting a statutory offence; s. 6 would be relevant if the offence is a common law one.
121  UKHL 37.
122 Followed in R (E) v DPP  EWHC 1465 (Admin), but see Malkani (2011).
124 (1998) 27 EHRR 611.
125  1 Cr App R 59.
126 Silver v UK (1983) 5 EHRR 347.
127 Norris v Government of the United States of America  UKHL 16.
128 (2000) 30 EHRR 214 (ECtHR).
129 (1999) 28 EHRR 603.
130  EWCA Crim 1230. See also Cotter  Crim LR 824, where it was held that the offence of perverting the course of justice was sufficiently clear to be compatible with the European Convention.
131 Air Navigation (No. 2) Order 1995, SI 1995/1970, art. 57 and the Civil Aviation Act 1982, s. 61.
132  UKHL 16, .
134  AC 462, 481 (HL).
135 Ashworth and Blake (1996).
136  2 AC 545, 569.
137 (1988) 13 EHRR 379.
138  Crim LR 217.
139 R v DPP, ex p Kebelene  4 All ER 801 (HL).
141 cf. DPP v Barker  Crim LR 140 and R v Makuwa  Crim LR 911.
142 See Webster  EWCA Crim 2819.
143 Lambert  3 WLR 206 (HL).
144  3 WLR 206 (HL). For criticism, see Beyleveld, Kirkham, and Townend (2002).
145  1 WLR 1736.
146  UKHL 37.
147 Followed in R (E) v DPP  EWHC 1465 (Admin), but see Malkani (2011).
148  Crim LR 657.
149  EWCA Crim 2263.
150  1 Cr App R 59.
151  Crim LR 213 (CA).
152  3 WLR 982 (HL).
153 R (Howitt) v Preston Magistrates’ Court  EWHC 1284 (Admin).
154  EWHC 71 (Admin).
155 Highways Act 1980, s. 137.
156 Norrie (2002).
157 Thomas (2010) for a fascinating (and rather reassuring) survey of the fairness of juries.
158 Of particular concern are the racial aspects of crime: see Phillips and Bowling (2002). On the wider issue of the link between crime and social exclusion, see Green (2011a); J. Young (2002); and Tadros (2009). Garland (2001) discusses the use of crime as a form of social control.
160 Dustin (2004).
161 Loveless (2010).
162 Herring (2011b).
163 Heidensohn (2002).
165 Walklate (2001).
167 A very useful collection of readings can be found in von Hirsch and Ashworth (1998).
169 See Lacey (1988: 7–8).
170 J.G. Murphy (1994).
172 Often one’s views on punishment reflect wider social, political, and even religious views.
173 Walker (1994).
174 For a startling example, see Attorney-General’s Reference (No. 4 of 2002)  Crim LR 333, which suggested sentences of five years for robbery of mobile phones in order to deter others.
175 Edmundson (2002).
176 Richards (1998).
177 H. Morris (1994). One particularly controversial proposal is that those deemed particularly dangerous should be incapacitated for longer than those deemed non-dangerous who commit similar offences (see von Hirsch (1998a and 1998b) and Prins (2003)). For a broader discussion of the issues, see Ashworth, Zedner, and Tomlin (2013).
178 Christie (1998).
179 The evidence is discussed in Beyleveld (1998).
181 Martinson (1974).
182 Brody (1978) discusses the effectiveness of various rehabilitative techniques.
183 Walker (1998).
184 M. Moore (1987) claims that retributive theories reflect a natural intuition.
185 Kant (1965: 100).
187 N. Morris (1969).
188 von Hirsch (1985).
189 N. Morris (1994).
190 Feinberg (1994).
193 e.g. Lacey (2002).
194 Justice Committee (2021).
195 Quoted in ibid: para. 34.
196 Quoted in ibid: para. 35.
197 Dodd (2020).