Criminal Law Notes
Decisions to criminalise
- Principles and ideals informing decisions to criminalise
-> Autonomy: the capacity for free and rational action taking effect in and on the natural and social world
designates human beings as autonomous moral agents, that is as bearing responsibility for their actions whether
good or bad -> punishment for breach can then be justified because, by offending, the individual is deemed to
choose not only to offend but also the punishment ‘price-tag’ to his conduct
*The harm principle: 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 -> its negative thrust: it gives political priority
to individual freedom from coercion rather than individual or collective goods such as morality or welfare -> its
positive thrust: where freedom of action must be restricted in order to maintain the autonomy and security of
citizens, it is proper to curtail it(reduce) -> people who steal from us seek to be authors of our destiny as well as
their own. It is therefore right to restrict their freedom to do so.
1. What is harm?
Feinberg talks of both private and public harm. State coercion is thus justified to prevent theft(private harm) and
tax evasion(public harm) -> the harm principle covers both harm and the threat of harm
-> in a politico-logical sense harm refers to a wrongful set-back to some protected interest -> Feinberg describes
‘setting-back’ as invading an interest in such a way as to leave it in a worse condition that it otherwise would
have been had the invasion not taken place at all
-> principle of minimal criminalisation: the state should not criminalise and punish, although it may have reason
to, unless it is unavoidable
-> distinguishing between harm, hurt and offence: what is harmful to us is a reason to stop it but what is
offensive to us, however, is not in itself a reason to stop it -> so while punching someone(harm) is a criminal
offence whether it takes place in public or private, homosexual activity or soliciting for sex(no harm) is an
offence only if it takes place in public
-> noise, graffity, begging, smoking in public, litter are all things capable of reducing our quality of life without
individual instances having a sufficient impact to cause a measurable set-back of interests
2. The harm principle’s influence on criminal doctrine
-> welfare offences: such legislation is designed to allow the state to secure its own and our welfare interests ->
public welfare is here deemed so crucial to society’s general purposes that such offences are often constituted in
violation of the principle of responsibility
-> core crimes: focal crimes such as rape, assault, criminal damage and so on are constituted only upon proof of
the absence of consent, since only then will any private interests be wrongfully set back -> overriding a person’s
consent is wrong and even if he benefits from it, this still doesn’t make it right
3. Alternative notions of autonomy: the harm principle may be too narrow to serve the interests which the
criminal law acts to defend -> it ignores the diverse ways in which individual intersts in autonomy can be
compromised
,-> primary harms: violations of interest in retaining or maintaining what one is entitled to have -> so society
criminalises theft because it is a violation of what one is entitled to keep but it doesn’t criminalise a failure to
reward an employee in accordance with her value
- Other principles and ideals informing decisions to criminalise
-> Harm prevention and other wlefare values:
• Enforcing morality: law and morality both serve to lay down standards of behaviour -> but if we go
beyond traditional crimes such as murder and theft, the actual content of criminal law is only marginally
concerned with upholding and enforcing community values -> a large proportion of criminal law is
concerned with protecting people’s welfare interests rather than society’s moral structure -> leaves open
the question as to whether serious breaches of morality are sufficient basis upon which to criminalise
conduct
How to strike the appropriate balance between individual freedom and state control, where criminalisation may
restrict the scope of a person’s cultural and self identity?
Emile Durkheim’s view: distinguish between the values which some people may hold an the values which all
people must hold for the same society to survive -> only the latter were an appropriate object of enforcement ->
punishment was the response of an outraged community to an infraction of a value it hold dear to its ‘collective
conscience’ -> such an approach offers to say both what aspets of social morality should be enforced through
the criminal sanction and also what should not
Lord Devlin’s modern version: the enforcement of morals was as much a proper task for government as the
suppression of political subversion, since both threatened to destroy or damage the community -> sexual
freedom should give way to the broader claims of community which require key social institutions such as the
family to be protected from the potentially subversive effect of a counter-sexual culture -> society is only
entitled to introduce the criminal sanction if the activity offers a serious threat to the social structure, supposedly
reflected in the degree of indignation and outrage the practice excited
• Liberal objections to the enforcement of morality: the state shouldn’t intervene simply to enforce
morality unless perhaps the individual concerned, by virtue of youth or mental incapacity, was in need
of paternalist protection -> Lord Devlin was criticised for basing the test for assessing the propriety of
criminalisation upon the degree of social disgust since disgust is unable to differentiate the good from
the bad
• Is there a meaningful difference between legislating to enforce morality and legislating to prevent harm?
R v Brown: a group of men were convicted for their involvement in consensual sadomasochistic sexual acts
over a 10-year period -> whether conseunsual sado-masochism was lawful by virtue of the participant’s cosent
or unlawful upon the ground that it involved act of gratuitous violence -> the minority states that there was no
basis for criminalisation -> the majority however, said that criminalisation was appropriate because sado-
masochism invlolved inflicting pain and injury plus that society collectively had a stake in preventing a possible
emergence of cults of violence -> the potential moral hram to individuals involved in consensual sado-
masochism fro sexual gratification’trumped’ the individual’s presumtpive right to sexual autonomy -> the
criminalisation of the possession of extreme pornography has also been justified in this was
• Principled approaches to the enforcement of morals: contemporary defenders of enforcing morality
emphasise the importance of society exhibiting moral neutrality in the standards it enforces -> the
problem with Lord Devlin’s approach is that he wishes to enforce morality preferentially -> as long as
, everyone was subject to the same proscription society would show no disrespect of rights by supporting
one moral value against another -> a radical proposal along these line: the state should respond to
serious and direct threats to and violations of fundamental interests through behaviour which expresses a
rejection of, hostility or total indifference to, the basic framework values which society acknowledges
-> Practical criteria underpinning decisions to criminalise: thresholds of seriousness
• Grading wrongs: appropriate thresholds, in theory at least, are constituted by the requirement that
criminal liability should only attend culpable(deserving blame) wrongdoing -> the more serious the
harm, the greater the wrong -> this can cause a controversial legislative outcome-> eg the Crime and
Disorder Act 1998 which enacted that crimes of violence, criminal damage and other crimes were made
serious when motivated by racial or religious hostility
Feinberg’s method for assessing seriousness of harm centres upon the victim’s loss of choice or opportunity ->
theft justifies criminalisation whereas dishonest borrowing does not -> it is criminalised only in exceptional
cases where collective interests are imperilled
An alternative way of settling thresholds of seriousness appropriate for both determining the level at which
criminalisation is first appropriate and thereafter, as a means of grading different offences for purpses of setting
appropriate punishments -> the mechanism turn our attention from what the victim loses in terms of choice to
what he loses in terms of quality of life -> harms are graded according to the effect that they have on a person’s
standard of living assessed according to the material criteria sich as financial resources and shelter and wider
aspects of a good quality of life such as health, dignity, physical amenity, privacy and so on
• Remote harms and non-victimising crimes: a harm at one or more stages removed from a risk-creating
activity -> the activity does not in itself create the risk but it sets in chain casual processes which may do
so -> crimes of possession such as drugs and weapon possession are typically justified upon the basis
that criminalising possession reduces their use, which in turn redices the risk that they will be used to
cause harm to public or private interests -> the possession of extreme pornography was made the subject
of a criminal offence since it may create a climate in which sexual violence is not taken seriously, with
all that that entails
Feinberg’s mechanism in determining an appropriate threshold for state intervention in the absence of any direct
harm-causing activity is a practical equation weighing the gravity of the harm and the likelihood of its
occurrence on the one hand, against the social value of the relevant conduct and the degree of interference with
personal liberty on the other -> the greater the risk of harm and the greater the magnitude of the harm which
would occur if the risk materialised, the greater must be the value of the conduct and the implications for
personal liberty to justify criminalisation
• Practical limiting criteria: Husak: liberal society is suffering a crisis of overcriminalisation. If social
problems emerge the instinctive response of legislators is to reach for the criminal law. Consideration
governing the propriety of criminalisation:
1. since punisment expresses condemnation, only conduct worthy of condemnation should be criminalised
2. criminal laws should not punish innocent conduct
3. each criminal law must do more good than harm
4. conduct should not be criminalised unless the state has a compelling interest in punishing those who engage
in it. Non-criminal means must be used if this would be effective
5. the criminal law should be narrowly tailored to serve the state’s compelling interest; criminal laws should be
neither over-inclusive nor under-inclusive
6. each criminal must be designed to prevent a non-trivial harm or evil
, The criminalisation of drug use reflects all the considerations Husak was concerned to identify as in need of
consideration. The best estimates suggest that the majority of government spending on responding to illegal
drugs is devited to enforcing drug laws, not prevention or treatment -> criminalising private possession and
consumption can be expected to produce rule-avoidance and black markets
Punishment
- Punishment in the liberal state: core features: 1)the principled infliction by a state-cosntituted institution 2)of
what are generally reagrded as unpleasent consequences 3)on individuals or groups publicly adjucated to have
breached the law 4)as a reponse to that breach of the law, or with the motive of enforcing the law, and not
intended solely as a means of compensation
-> since it involves harming another simply because their behaviour is unacceptable, the practice is then
profoundly problematic
-> by agreeing to a system of enforceable norms, citizens are treated as consenting to punishment
-> most theories of punishment offer to advance moral reasons – they seek to claim that punishment is the ‘right
response’ to wrongdoing -> but a punishment ‘must not be se severe as to be degrading to human dignity’
- Theories of punishment: they have fallen into one of two categories:
-> the first one holds that whether an action (eg punishment) is good or not can be decided by reference to its
intrinsic worth -> a moral reasoning within this tradition will hold that people should keep their promises
because keeping promises is intrinsically a good thing -> non- consequentialist theory of punishment ->
retributivism
-> the second one holds that whether an action is good or not is not something which can be decided in isolation
from the consequences -> keeping a promise is good if the consequences which will flow from keeping it are
better than those which will result from breaking it -> consequentalist theory of punishment -> utilitarianism
- Retributive theories:
-> Immanuel Kant: judicial punishment must in all cases be imposed on him only on the ground that he has
committed a crime
-> hold that punishment is either wrong or right -> it cannot be made right by some good consequence which
flows from the imposition of punishment or wrong by some bad consequence -> punishing people for their
crimes shows society’s respect for the choices a person had made
-> a general problem with this theory: accepting the assumption that all cases of rule-breaking are automatically
cases of wrongdoing sufficient to justify censure -> this underpins a version of desert theory which hold that
while desert is necessary for punishment, it does not necessitate it -> punishment without blame cannot be
possibly deserved
-> forms of retributive theory: two basic percepts: that punishment may justly be imposed upon a person who
deserves to be punished and that the level of punishment may also reflect his desert -> it is not possible to say
what the deserved level of punishment is for a given crime, but we can at least try to ensure that the general
minimum and maximum levels of appropriate punishment are fixed and punishment for one type of offence is
not disproportionate to that given for another
