CRIMINAL LAW
Theories of Criminalisation:
Theories of criminalization provide various principles that form the basis upon which
certain conduct is criminalized;
What ought to be criminal? (Normative)
How is that justi ed? (Descriptive)
Theories of criminalization refer to two features:
Conduct must be wrongful and
It must be necessary to employ the criminal law to condemn or prevent such
conduct.
Principle #1 - LEGAL MORALISM:
Central Principle: The fact that x is morally wrong makes x criminal. It can be
legitimate to prohibit conduct on the grounds that it is immoral, even if it causes
neither harm nor o ence to the actor or others.
Lord Devlin, “Morals and The Criminal Law” reprinted in The Enforcement of Morals
(1965):
“I think it is clear that the criminal law as we know it is based upon moral principle. In
a number of crimes its function is simply to enforce a moral principle and nothing else.
The law, both criminal and civil, claims to be able to speak about morality and
immorality generally.... Immorality then, for the purpose of the law, is what every
right-minded person is presumed to consider immoral. Any immorality is capable of
a ecting society injuriously and in e ect to a greater or lesser extent it usually does;
this is what gives the law locus standi.”
Case Example – R v Brown:
Issues addressed: (Regarding sado-masochistic acts of the defendants)
- Can the defendants consent to violence?
- If defendant does consent, does that prohibit x from being prosecuted for
assault occasioning actual bodily harm (ss. 20 and 47 of the O ences Against
the Person Act (1861))?
Lord Templeman Judgement:
‘It is not clear to me that the activities of the appellants were exercises of rights in
respect of private and family life... Society is entitled and bound to protect itself
against a cult of violence. Pleasure derived from the in iction of pain is an evil thing.
Cruelty is uncivilised. I would answer the certi ed question in the negative and dismiss
the appeals of the appellants against conviction.’
ff fi ff ff fi fl ff
, Principle #2 – HARM PRINCIPLE:
Central Principle: People should exhibit free will and State should only intervene if
harm is caused to others.
Report of the Wolfenden Committee on Homosexual O ences and Prostitution 1957:
“In this eld, the function of the criminal law as we see it, is to preserve public order
and decency, to protect the citizen from what is o ensive or injurious and to
provide su cient safeguards against exploitation and corruption of others.
It is not in our view, the function of the law to intervene in the private lives of
citizens, or to seek to enforce any particular pattern of behavior.”
HLA Hart “Immorality and Treason” (1959) 62 Listener 162-163
“No doubt we would all agree that consensus of moral opinion on certain matters is
essential if society is to be worth living in. Laws against murder, theft, and much else
would be of little use if they were not supported by a widely di used conviction that
what these laws forbid is also immoral .... First, we must ask whether a practice
which o ends moral feeling is harmful, independently of its repercussions on the
general moral code.
Secondly, what about repercussions on the moral code? Is it really true that failure to
translate this item of general morality into criminal law will jeopardize the whole
fabric of morality and society?”
Principle #3 - LEGAL PATERNALISM:
Central Principle: Preventing someone from harming themselves - interfering with
autonomy ‘for their own good.’
Law Commission, Consent in the Criminal Law (1995) CP 139, para C.63
The fact is that many of us make life-style choices which do not promote our
immediate or long-term interests. Smoking certainly falls into this category of choices:
for the paternalist it should be a clear target for criminalization. But the point goes
much further.... Risk-taking without good reason would also be ruled out.... In principle,
the paternalist seems to be committed to using the criminal law to turn us all into
super- t, clean-living “spartans,” whether we like it or not”
‘Harms’ Approach/Principle
Theorists have attempted to explain and justify criminalization by focusing on the
targeting of ‘harm’.
Working de nition of ‘Harm’: Conduct from the defendant that infringes the autonomy
of the victim or causes serious o ence.
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fi ff ff ff ff
, Advantages of the Harms Approach:
1) Objective:
Harm is a useful target because, unlike other theories based on moral wrongs, it is
relatively objective: can generally be observed, tested, and measured.
Disadvantages of the Harms Approach:
1) Not applicable to all o ences:
This approach is readily applicable to o ences against a person such as murder, rape,
or battery.
But it is much more di cult to present harm as the rationale for the criminalization of
pre-emptive o ences (e.g., liability for attempting to commit a crime) or the many
regulatory o ences (e.g., failing to have a valid road tra c license for a vehicle.)
Thus, in order to be adopted as an approach to explain and justify criminalization, the
‘harms’ approach can either:
Maintain a narrow view of harm and fail to explain a large part of the criminal law that
does not target such harm or
Interpret harm widely enough to encompass all o ences (e.g., endangering/harming
public order) but in doing so risk the concept of harm becoming so broad that it is no
longer useful.
2) Threshold problem:
While we should target certain harms and wrongs, it would be unwise to criminalize all
harmful conduct, regardless of context or degree.
Du outlines a useful distinction between:
Private wrongs: Wrongs that are not legitimate targets for criminalization.
Public wrongs: Wrongs which are.
However, Du recognizes that the distinction between these is politically and
morally subjective and lacks clear criteria.
Drawing on theories of criminalisation to discuss why conduct has been legitimately
criminalised can help analyse the substantive criminal law through:
1) When interpreting an imprecise o ence/defence:
When an o ence or defence is imprecise, courts often consider the intention of the
legislature in order to clarify and apply the rule. Regarding o ences, the aim is to
identify the mischief (harm/wrong) that the o ence was designed to target.
Refer to case of Wilson [1996] Crim LR 573 – Husband convicted of an o ence
against the person (consensually branded his wife with a hot knife) and appealed. Law
regarding consent in this area is far from clear. Court of Appeal allowed appeal,
ff ff ff
ff ff ffiff ff ff ff ff ffiff ff
, stating; ‘Criminal law had no place interfering in the private lives of married couples
when they are engaged in this activity.’
2) When we are evaluating the e ectiveness of an o ence:
The evaluation of an o ence will often focus on its ‘over-inclusivity’ (criminalizing more
than intended) or its ‘under-inclusivity’ (criminalizing less than intended.) This analysis
requires that we identify the mischief of the o ence, evaluate whether the o ence
de nition successfully targeted that mischief, and whether it has gone beyond that
target to criminalize other conduct inappropriately.
3) When discussing the potential for a new o ence:
It is useful to consider the mischief that potential new o ences are looking to
target, to consider whether they are deserving of criminalization, and whether they
are adequately covered by existing law.
Sentencing: what are the punishments for committing crimes?
Note the gravity of o ences in relation to their maximum sentences;
The seriousness of o ences is graded based on the maximum sentence available upon
conviction.
The judge’s approach to sentencing prior to the last 40 years relied on the following
factors:
- Facts of the o ence
- Maximum sentence available
- Any mitigation by the defense
- Prior decisions of the Court of Appeal regarding similar case categories
Currently, judges must follow a more structured, step-by-step decision-making process
with regards also to:
- Criminal Procedure Rules
- Criminal Practice Direction
- Sentencing Council De nitive Guidelines (for the relevant o ence)
Regarding the last of the above, each guideline provides a stepped approach for the
judge to work through when arriving at a lawful and appropriate sentence:
- First, identify the harm and culpability involved (level of harm caused and the
defendant’s role in causing it)
- Then, consider if there were any aggravating features (e.g., vulnerability of
victim, abuse of power on behalf of the defendant, history of similar o ending
etc.)
- Consider mitigating features (e.g., does the defendant display remorse, where
they provoked, do they have a lack of maturity etc.)
fi ff ffff fffi ff ff ff ff ffff ff ff
Theories of Criminalisation:
Theories of criminalization provide various principles that form the basis upon which
certain conduct is criminalized;
What ought to be criminal? (Normative)
How is that justi ed? (Descriptive)
Theories of criminalization refer to two features:
Conduct must be wrongful and
It must be necessary to employ the criminal law to condemn or prevent such
conduct.
Principle #1 - LEGAL MORALISM:
Central Principle: The fact that x is morally wrong makes x criminal. It can be
legitimate to prohibit conduct on the grounds that it is immoral, even if it causes
neither harm nor o ence to the actor or others.
Lord Devlin, “Morals and The Criminal Law” reprinted in The Enforcement of Morals
(1965):
“I think it is clear that the criminal law as we know it is based upon moral principle. In
a number of crimes its function is simply to enforce a moral principle and nothing else.
The law, both criminal and civil, claims to be able to speak about morality and
immorality generally.... Immorality then, for the purpose of the law, is what every
right-minded person is presumed to consider immoral. Any immorality is capable of
a ecting society injuriously and in e ect to a greater or lesser extent it usually does;
this is what gives the law locus standi.”
Case Example – R v Brown:
Issues addressed: (Regarding sado-masochistic acts of the defendants)
- Can the defendants consent to violence?
- If defendant does consent, does that prohibit x from being prosecuted for
assault occasioning actual bodily harm (ss. 20 and 47 of the O ences Against
the Person Act (1861))?
Lord Templeman Judgement:
‘It is not clear to me that the activities of the appellants were exercises of rights in
respect of private and family life... Society is entitled and bound to protect itself
against a cult of violence. Pleasure derived from the in iction of pain is an evil thing.
Cruelty is uncivilised. I would answer the certi ed question in the negative and dismiss
the appeals of the appellants against conviction.’
ff fi ff ff fi fl ff
, Principle #2 – HARM PRINCIPLE:
Central Principle: People should exhibit free will and State should only intervene if
harm is caused to others.
Report of the Wolfenden Committee on Homosexual O ences and Prostitution 1957:
“In this eld, the function of the criminal law as we see it, is to preserve public order
and decency, to protect the citizen from what is o ensive or injurious and to
provide su cient safeguards against exploitation and corruption of others.
It is not in our view, the function of the law to intervene in the private lives of
citizens, or to seek to enforce any particular pattern of behavior.”
HLA Hart “Immorality and Treason” (1959) 62 Listener 162-163
“No doubt we would all agree that consensus of moral opinion on certain matters is
essential if society is to be worth living in. Laws against murder, theft, and much else
would be of little use if they were not supported by a widely di used conviction that
what these laws forbid is also immoral .... First, we must ask whether a practice
which o ends moral feeling is harmful, independently of its repercussions on the
general moral code.
Secondly, what about repercussions on the moral code? Is it really true that failure to
translate this item of general morality into criminal law will jeopardize the whole
fabric of morality and society?”
Principle #3 - LEGAL PATERNALISM:
Central Principle: Preventing someone from harming themselves - interfering with
autonomy ‘for their own good.’
Law Commission, Consent in the Criminal Law (1995) CP 139, para C.63
The fact is that many of us make life-style choices which do not promote our
immediate or long-term interests. Smoking certainly falls into this category of choices:
for the paternalist it should be a clear target for criminalization. But the point goes
much further.... Risk-taking without good reason would also be ruled out.... In principle,
the paternalist seems to be committed to using the criminal law to turn us all into
super- t, clean-living “spartans,” whether we like it or not”
‘Harms’ Approach/Principle
Theorists have attempted to explain and justify criminalization by focusing on the
targeting of ‘harm’.
Working de nition of ‘Harm’: Conduct from the defendant that infringes the autonomy
of the victim or causes serious o ence.
fififf ffi
fi ff ff ff ff
, Advantages of the Harms Approach:
1) Objective:
Harm is a useful target because, unlike other theories based on moral wrongs, it is
relatively objective: can generally be observed, tested, and measured.
Disadvantages of the Harms Approach:
1) Not applicable to all o ences:
This approach is readily applicable to o ences against a person such as murder, rape,
or battery.
But it is much more di cult to present harm as the rationale for the criminalization of
pre-emptive o ences (e.g., liability for attempting to commit a crime) or the many
regulatory o ences (e.g., failing to have a valid road tra c license for a vehicle.)
Thus, in order to be adopted as an approach to explain and justify criminalization, the
‘harms’ approach can either:
Maintain a narrow view of harm and fail to explain a large part of the criminal law that
does not target such harm or
Interpret harm widely enough to encompass all o ences (e.g., endangering/harming
public order) but in doing so risk the concept of harm becoming so broad that it is no
longer useful.
2) Threshold problem:
While we should target certain harms and wrongs, it would be unwise to criminalize all
harmful conduct, regardless of context or degree.
Du outlines a useful distinction between:
Private wrongs: Wrongs that are not legitimate targets for criminalization.
Public wrongs: Wrongs which are.
However, Du recognizes that the distinction between these is politically and
morally subjective and lacks clear criteria.
Drawing on theories of criminalisation to discuss why conduct has been legitimately
criminalised can help analyse the substantive criminal law through:
1) When interpreting an imprecise o ence/defence:
When an o ence or defence is imprecise, courts often consider the intention of the
legislature in order to clarify and apply the rule. Regarding o ences, the aim is to
identify the mischief (harm/wrong) that the o ence was designed to target.
Refer to case of Wilson [1996] Crim LR 573 – Husband convicted of an o ence
against the person (consensually branded his wife with a hot knife) and appealed. Law
regarding consent in this area is far from clear. Court of Appeal allowed appeal,
ff ff ff
ff ff ffiff ff ff ff ff ffiff ff
, stating; ‘Criminal law had no place interfering in the private lives of married couples
when they are engaged in this activity.’
2) When we are evaluating the e ectiveness of an o ence:
The evaluation of an o ence will often focus on its ‘over-inclusivity’ (criminalizing more
than intended) or its ‘under-inclusivity’ (criminalizing less than intended.) This analysis
requires that we identify the mischief of the o ence, evaluate whether the o ence
de nition successfully targeted that mischief, and whether it has gone beyond that
target to criminalize other conduct inappropriately.
3) When discussing the potential for a new o ence:
It is useful to consider the mischief that potential new o ences are looking to
target, to consider whether they are deserving of criminalization, and whether they
are adequately covered by existing law.
Sentencing: what are the punishments for committing crimes?
Note the gravity of o ences in relation to their maximum sentences;
The seriousness of o ences is graded based on the maximum sentence available upon
conviction.
The judge’s approach to sentencing prior to the last 40 years relied on the following
factors:
- Facts of the o ence
- Maximum sentence available
- Any mitigation by the defense
- Prior decisions of the Court of Appeal regarding similar case categories
Currently, judges must follow a more structured, step-by-step decision-making process
with regards also to:
- Criminal Procedure Rules
- Criminal Practice Direction
- Sentencing Council De nitive Guidelines (for the relevant o ence)
Regarding the last of the above, each guideline provides a stepped approach for the
judge to work through when arriving at a lawful and appropriate sentence:
- First, identify the harm and culpability involved (level of harm caused and the
defendant’s role in causing it)
- Then, consider if there were any aggravating features (e.g., vulnerability of
victim, abuse of power on behalf of the defendant, history of similar o ending
etc.)
- Consider mitigating features (e.g., does the defendant display remorse, where
they provoked, do they have a lack of maturity etc.)
fi ff ffff fffi ff ff ff ff ffff ff ff
