The Role of the Criminal Law
Criminalisation
The most coercive method by which the state can regulate behaviour.
Criminal law helps to set standards and tells people what they can and can’t do.
Ashworth and Horder, Principles of Criminal Law.
‘To criminalise a certain kind of conduct is to declare that it is a public
wrong that should not be done, to institute a threat of punishment in
order to supply a pragmatic reason for not doing it, and to censure
those who nevertheless do it’.
Unpicking Assumptions
Is criminalisation limited to a small number of very serious wrongs, i.e. murder, rape
and theft?
It is not limited to just those offences, it is very vast with thousands of
criminal offences.
Labour Party 1997-2008 introduced the equivalent of 1 new criminal
offence for everyday that it was in power.
Ministry of Justice 2014 – 280 new offences were introduced in that
year.
Is criminalisation and punishment the only way of dealing with ‘public’ wrongs?
This is a narrow-minded view.
What is/Should be Criminalised?
Public wrongs?
Moral wrongs?
Harm to others?
Harm to self?
Blameworthy conduct?
Public Wrongs
A public wrong takes place in the public sphere?
No, because not all crimes take place in public, i.e. murder, rape or domestic
abuse.
Public wrongs affect the public as a whole?
If an individual is raped, the public as a whole would be impacted and feel
worried and terrified about that.
But, the rest of the public are not actually experiencing that wrong, the
individual victim does.
Ashworth and Horder, Principles of Criminal Law (OUP 2009) 22.
‘To criminalise a certain kind of conduct is to declare that it is a public wrong
that should not be done’.
When we designate a particular activity as criminal, we introduce a
new law that sets out a new criminal offence.
Identifying that behaviour as wrongful, and creating a mechanism
through which we could punish someone.
Duff, Towards a Modest Legal Moralism (2014) 8 Criminal Law and Philosophy 217.
, ‘We have a good reason to criminalise some type of conduct if (and only if) it
constitutes a public wrong’.
We can only criminalise types of conduct if they are public wrongs.
Violates the defining values of a particular community or society.
Public wrongs are those that offend the core values.
Edwards and Simester, What’s Public About Crime? (2017) 37(1) OJLS 105, 132.
‘The claim that something is a public wrong is the conclusion of an argument,
not one of its premises’.
Criticises Duff, do we actually have these shared core values in
society?
There are no criteria by which we can identify something as a public
wrong, and then use that to justify criminalising it.
Once we have criminalised something, the fact of it being criminal
identifies it as a public wrong.
Crime and Morality
Lord Devlin.
Criminal law should be used to enforce morals and a shared code.
Shared morality is necessary for individuals to have a meaningful existence
within society.
Standard is of the man in the jury box.
Jury would be ‘normal’ members of society who would hold
those shared moral values.
Criminalisation is only justified when the activity that is being criminalised
presents a serious threat to society’s structure of shared moral values.
Hart - Law, Liberty and Morality (Stanford University Press 1963).
Criminal law should only be used to prevent harm to others.
Social intervention is only justified to prevent harm to another.
Can only legislate against harm to self if serious public interest at stake.
Supposed ‘immorality’ is not sufficiently good reason to criminalise
behaviour.
The Harm Principle – Liberalism
John Stuart Mill, On Liberty (1859).
‘The sole end for which mankind is warranted individually or collectively, in
interfering in the liberty of action of any of their number is self-protection.
The only purpose for which power can rightfully be exercised over any
member of a civilised community against his will is to prevent harm to others.
His own good, either physical or moral, is not a sufficient warrant. Over
himself, over his own body and mind, the individual is sovereign’.
The starting point is one of individual autonomy/liberty.
As an individual, you should be able to do what you want with your
body and your mind.
The only time that the community or state should be able to
stop you is if you are posing a risk of harm, or causing harm to
others.
What types of harm count?
Criminalisation
The most coercive method by which the state can regulate behaviour.
Criminal law helps to set standards and tells people what they can and can’t do.
Ashworth and Horder, Principles of Criminal Law.
‘To criminalise a certain kind of conduct is to declare that it is a public
wrong that should not be done, to institute a threat of punishment in
order to supply a pragmatic reason for not doing it, and to censure
those who nevertheless do it’.
Unpicking Assumptions
Is criminalisation limited to a small number of very serious wrongs, i.e. murder, rape
and theft?
It is not limited to just those offences, it is very vast with thousands of
criminal offences.
Labour Party 1997-2008 introduced the equivalent of 1 new criminal
offence for everyday that it was in power.
Ministry of Justice 2014 – 280 new offences were introduced in that
year.
Is criminalisation and punishment the only way of dealing with ‘public’ wrongs?
This is a narrow-minded view.
What is/Should be Criminalised?
Public wrongs?
Moral wrongs?
Harm to others?
Harm to self?
Blameworthy conduct?
Public Wrongs
A public wrong takes place in the public sphere?
No, because not all crimes take place in public, i.e. murder, rape or domestic
abuse.
Public wrongs affect the public as a whole?
If an individual is raped, the public as a whole would be impacted and feel
worried and terrified about that.
But, the rest of the public are not actually experiencing that wrong, the
individual victim does.
Ashworth and Horder, Principles of Criminal Law (OUP 2009) 22.
‘To criminalise a certain kind of conduct is to declare that it is a public wrong
that should not be done’.
When we designate a particular activity as criminal, we introduce a
new law that sets out a new criminal offence.
Identifying that behaviour as wrongful, and creating a mechanism
through which we could punish someone.
Duff, Towards a Modest Legal Moralism (2014) 8 Criminal Law and Philosophy 217.
, ‘We have a good reason to criminalise some type of conduct if (and only if) it
constitutes a public wrong’.
We can only criminalise types of conduct if they are public wrongs.
Violates the defining values of a particular community or society.
Public wrongs are those that offend the core values.
Edwards and Simester, What’s Public About Crime? (2017) 37(1) OJLS 105, 132.
‘The claim that something is a public wrong is the conclusion of an argument,
not one of its premises’.
Criticises Duff, do we actually have these shared core values in
society?
There are no criteria by which we can identify something as a public
wrong, and then use that to justify criminalising it.
Once we have criminalised something, the fact of it being criminal
identifies it as a public wrong.
Crime and Morality
Lord Devlin.
Criminal law should be used to enforce morals and a shared code.
Shared morality is necessary for individuals to have a meaningful existence
within society.
Standard is of the man in the jury box.
Jury would be ‘normal’ members of society who would hold
those shared moral values.
Criminalisation is only justified when the activity that is being criminalised
presents a serious threat to society’s structure of shared moral values.
Hart - Law, Liberty and Morality (Stanford University Press 1963).
Criminal law should only be used to prevent harm to others.
Social intervention is only justified to prevent harm to another.
Can only legislate against harm to self if serious public interest at stake.
Supposed ‘immorality’ is not sufficiently good reason to criminalise
behaviour.
The Harm Principle – Liberalism
John Stuart Mill, On Liberty (1859).
‘The sole end for which mankind is warranted individually or collectively, in
interfering in the liberty of action of any of their number is self-protection.
The only purpose for which power can rightfully be exercised over any
member of a civilised community against his will is to prevent harm to others.
His own good, either physical or moral, is not a sufficient warrant. Over
himself, over his own body and mind, the individual is sovereign’.
The starting point is one of individual autonomy/liberty.
As an individual, you should be able to do what you want with your
body and your mind.
The only time that the community or state should be able to
stop you is if you are posing a risk of harm, or causing harm to
others.
What types of harm count?
