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Criminal Law Module Notes
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Criminal Law - Introduction Notes on Criminalisation
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Topic 1- Crime, Criminalisation and Basic PrinciplesWhat is a crime?
Definition of a Crime:
Moral Definition- An action or activity considered to be evil, shameful, or wrong; a moral
wrong
A Public Wrong- wrongdoing which threatens the security or well-being of society; public in
the sense that it concerns all members of society and requires a formal public response in
terms of censure and condemnation
Procedural Definition- ‘A legal wrong that can be followed by criminal proceedings which may
result in punishment’ (Williams G, Textbook of Criminal Law (2nd ed, Stevens & Sons, 1983, p
27)
• Attempts at defining crime may result in a failure to recognise the fact that often what
amounts to a ‘crime’ at any given time is contingent upon a number of factors and
that there is no straightforward moral or social test which can tell us whether conduct
is or should be criminal
The Process of Criminalisation
What conduct should be classified as criminal?
Concepts- Morality, Harm, Offence, Paternalism and Individual Autonomy
‘Criminalisation’ – Ashworth, 5th edition
• To criminialize a certain kind of conduct is to declare that it 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
• Use of state power calls for justification- by reference to democratic principles &
sufficient reasons for invoking this coercive and censuring machinery against
individual subjects
1) Morality
If certain behaviour is regarded as morally wrong is this sufficient justification for the creation
of a criminal offence? Do opinions on morality change over time or differ between societies?
• MORALITY is not a constant- changes over time
Problems with saying ALL immoral acts will be criminal:
•Whose morality?
•What role religion?
•How practical would it be?
•Risks discrimination against unpopular minorities?
, The Wolfenden Committee, Report of the Committee on Homosexual Offences and
Prostitution (1957) Cmnd 247 stated that the function of the criminal law was:
To preserve public order and decency
Protect citizen from what is offensive
Provide sufficient safeguards against exploitation
Wolfenden Committee- recommended homosexual behaviour between consenting adults
should be decriminalised
Also said what is NOT the function of criminal law:
X To intervene with the private lives of citizens
X To seek or enforce any particular pattern of behaviour- further than necessary
MUST be a realm of private morality and immorality- brief and crude terms is not the law’s
business
Lord Devlin
• Devlin was of the opinion that the criminal law could be used to punish immoral
behaviour
• Devlin did not argue that ALL immoral behaviour should be criminalised but- if society
had a strong enough collective judgment against certain behaviour that would be a
good indicator that the behaviour ought to be criminalised
• He argued not everything is to be tolerated- no society can do without intolerance,
indignation and disgust – these are the forces behind the law
• Devlin argued there was a collective judgment against homosexuality and a deep
feeling of disgust towards it
Hart
• Hart argued that not everything which offends against morality is of equal
importance to society
He suggested that two questions be asked before deciding whether an immoral act should
be criminalised:
1. Whether a practice which offends moral feeling is harmful, independently of its
repercussion on the moral code?
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