Lecture 6- Criminal Principles Flashcards
The scope of criminal law
Criminal law is often assumed to address the most serious sort of wrongful behaviour such as murder and rape.
Criminal offences are typically framed as public wrongs: they are committed not simply against a private individual (as in the private and civil law wrongs of contract or tort), but against the interests and state and the community as a whole.
Thus, a criminal conviction brings shame and stigma, classifying someone as ‘really bad’.
The criminal act is so serious, it potentially warrants incarceration.
Substantive Views
Criminal Law deals with the most serious harms
These are PUBLIC wrongs
A criminal conviction is both stigmatising AND indicates blame
Potential for serious punishment, including incarceration
Procedural Definition
Glanville Williams argues that it is impossible to provide a substantive definition of Criminal Law.
Instead he offers this procedural definition of a crime:
“[A]n act that is capable of being followed by criminal proceedings, having one of the types of outcome (punishment, etc) known to follow these proceedings.”
Overcriminalisation?
Brought about by an increasing number of governmental departments and agencies tasked with improving/enforcing standards in a particular area
The increasing numbers of ‘regulatory’ or ‘quasi-criminal offences have blurred the line between ‘criminal’ and ‘civil’ legal systems.
Problem of Overcriminalisation (3)
1.Liberal argument
2.Instrumentalist argument
3.Authoritarian argument
Liberal argument
which points to the impact on individual citizens if they are criminalized for conduct that is not sufficiently serious, and seeks to maximize the liberty or freedom of citizens to act free from criminal sanction.
Instrumentalist argument
criminal law is often an unsuitable tool to respond to particular types of behaviour.
Authoritarian argument
over-criminalisation works to undermine criminal law
Normative values
1.Autonomy and harm principle
2.Offence principle
3.Legal paternalism
4.Legal moralism
5.Minimal criminalisation
Autonomy
Liberalism, freedom and the principle of autonomy
The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” (J S Mill
Joel Feinberg restated Mill’s principle to define harm as a violation of anothers’ rights
There is always a danger of the harm principle being stretched too wide. Consequently it is usually accompanied by a principle of restraint– notably minimal criminalisation
Offence Principle
Because of the danger that the harm principle could be interpreted too broadly, Feinberg distinguished between harm, hurt and disgust.
Feinberg argues that ‘offense’ needs to be a separate principle and cannot be included within the Harm Principle – offences can be harmless!
The offence principle argues that the law should intervene with wrongful behaviour that causes serious offence
Legal Paternalism
Legal paternalism justifies state intervention where it is in necessary to protect an individual from themselves.
It might prevent physical, psychological or even economic harm. Examples of this relate to Laws which ban drugs or smoking.
Liberal critiques of this argue that it is not appropriate to use criminal law just because it would be in his interests – this represents a severe invasion of a person’s autonomy.
BDSM: R v Brown [1993] 2 All ER 75:
Body Modification: R v BM [2018] EWCA Crim 560
Female Genital Mutilation/Cutting: Female Genital Mutilation Act 2003
Legal Moralism
Some commentators, like Lord Devlin, believe that it is necessary for the State to use criminal law to uphold social morals.
To not do so risked undermining the very moral fabric of society.
A Case Study of Legal Moralism: The 1950s: Hart v Devlin debate over harm, morality and homosexuality
Lord Patrick Devlin, a judge, and HLA Hart, an academic, became embroiled in an argument about whether “moral” and “victimless” crimes like homosexuality should be subject to criminal sanction
Public Morals
Shaw v DPP [1962]
D charged with the common law offence of conspiracy to corrupt public morals
Prosecution contended that the courts had long been custos morum (guardian of morals).
Minimal Criminalisation
Here, Andrew Ashworth builds on the harm principle by noting that even if something is found to be harmful to others this does not necessarily mean that it automatically becomes conduct that should be criminalized.
The criminal law is a serious tool with which to try to stop particular behaviour, and as such caution should be exercised in using it even to control clearly harmful behaviour.
Example: the criminalisation of HIV transmission, which is seen by public health experts to push the problem of HIV underground making it more difficult to prevent onward transmission.
