Criminal Law for Criminologists

Principles and Theory in Criminal Justice

Noel Cross

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429884610
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Criminal Law for Criminologists uses theoretical and practical research to bridge the gap between 'the law in the books' (criminal law doctrine) and 'the law in action' (criminal justice process). It introduces the key policies and principles that drive criminal law in England and then explains the law itself in terms of relevant statute and case law. Starting with an outline of the basic principles and theories of criminal law and criminal justice, the author goes on to discuss:

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• Criminal law and criminal justice in historical perspective,

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• General principles of criminal law, including actus reus and mens rea,

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• Specific types of criminal offence, including property, homicide, sexual, public order and drug offences,

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• An overview of defences to crime,

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• An appendix outlining essential legal skills.

In examining the links between the worlds of criminal law and criminal justice, Criminal Law for Criminologists brings a fresh perspective to this field of research. Written in a clear and direct style, this book will be essential reading for students of criminology, criminal justice, law, cultural studies, social theory, and those interested in gaining an introduction to criminal law.

Chapter 1

Introduction

Chapter overview

Introduction: what is the point of studying criminal law if you are a criminology or criminal justice student?

Approaching criminal law in principle and practice

Approaching criminal justice in principle and practice

Conclusion: a road map for the rest of the book

Further reading

Chapter aims

After reading Chapter 1, you should be able to understand:

•The basic principles of criminal law

•The basic principles of criminal justice

•The key theories which try to explain what criminal law does

•The key theories which try to explain what criminal justice does

Introduction: what is the point of studying criminal law if you are a criminology or criminal justice student?

This book focuses on English criminal law and its relationships to the study areas of criminology and criminal justice. The book explains how criminal law defines crime and also how these definitions compare to developments in criminological theory, and how those involved in criminal justice use criminal law in practice as they respond to crime. Throughout the book, where the text talks about a defendant or victim in a particular criminal law case, the words ‘defendant’ and ‘victim’ will be abbreviated to ‘D’ and ‘V’, respectively. When referencing criminal law cases where one party to the case is the Crown, the text simply gives the other party name – so, for example, instead of writing R v Woollin [1999] AC 82, the text will just say Woollin, and so will the bibliography.

Criminal law defines certain kinds of behaviour as being unlawful and therefore provides a framework and a rulebook for criminal justice agencies who respond to crime in a range of different ways. However, do criminal justice organisations stick to the rules set out by criminal law? How do they respond to the social problem of crime – by using criminal law itself, or by using other values and ideas? The book aims to bridge the gap between criminal law and criminal justice to provide a better understanding of both subject areas while using both theoretical and practical knowledge as a way of bridging that gap.

Some writers (e.g. Hillyard and Tombs 2004; Pemberton 2007) have argued that criminal law is not useful to criminology and criminal justice because it wrongly focuses on individual responsibility and so overlooks social harms committed by states and organisations which are just as socially damaging as individual wrongdoing. In contrast, this book will argue that criminal law and criminal justice need each other to survive and therefore should be studied side by side (Zedner 2011). The gap between them has traditionally been wide in terms of writers on each side overlooking knowledge and ideas produced by the other side (Nelken 1987; Lacey 2007). However, without criminal law, criminal justice’s main purpose – enforcement of criminal law – would disappear. In addition, without criminal justice to enforce it, criminal law would lose much of its power to shape and maintain order in society. It is also true that each side has lessons that it could learn from the other. For example, criminology and criminal justice can give criminal law a better understanding of how to work towards a fairer society; and the criminal law can focus criminal justice and criminology’s attention on which kinds of behaviour society should and should not regard as crimes (Zedner 2011).

The next section of this chapter introduces basic principles relating to criminal law in England in terms of what criminal law is and what makes it distinctive as a social phenomenon.

Approaching criminal law in principle and practice

Defining criminal law

Farmer (2008) argues that there are two main approaches to defining criminal law. The first approach is that criminal law is made up of behaviours which can be seen as moral wrongs against the community (e.g. Duff 2007), or behaviours for which it is the community’s job to punish and which deserve the powerful response of a criminal conviction (Lamond 2007). The first problem with this view is that 21st-century criminal law extends beyond behaviours which the public agree should be considered crimes (like murder and rape) to include behaviours which are less obviously morally wrong, such as using a mobile phone while driving. The second problem with this view is that it assumes a strong consensus in society about what is and is not morally wrong – a consensus that is not present in modern societies like England today (Wilson 2012). This does not mean that criminal law never reflects public morality – only that we cannot fully explain modern criminal law using moral beliefs (cf. Devlin 1965).

The harm principle is an alternative approach to the idea of criminal law reflecting community values. The harm principle argues that criminal law does, and should, target behaviour that causes physical harm, psychological harm, or serious offence to another person (Feinberg 1984). As with the morality approach to law, one problem with the harm principle is that it cannot explain everything that criminal law currently defines as a crime. The harm principle seemingly cannot explain what Ashworth (2008) calls the preventive function of criminal law – the law’s labelling certain kinds of behaviour as carrying a risk of social harm or danger and therefore deserving of public condemnation and punishment. Nor can the harm principle explain the increasing number of regulatory offences within criminal law. One example is entering into an arrangement with someone you have reasonable cause to believe is under age 16, where the arrangement gives that person the chance of winning an animal as a prize (Animal Welfare Act 2006, s.11(3)). This does not mean that we should assume that criminal law never regulates behaviour that is objectively harmful (Hall and Winlow 2015: 89). However, criminal law’s scope is so wide that it is now difficult to see which types of behaviour are most harmful to society simply by looking at criminal law. A final problem with the harm principle is that it is vague and does not give any guidance about how to weigh the seriousness of different kinds of harm, how to judge them, or how to balance them (Harcourt 1999: 193). Some critical criminologists, for example Pemberton (2015), take a very different view of harm as a trigger for social response, but their ideas about harm do not come from the law itself. Instead, Pemberton and others take a wider approach to defining social harm based on harmful events that prevent humans from flourishing and which are the product of human action or inaction (Yar 2012: 63). These harms can be damaging to physical or mental health, damaging to a person’s autonomy, or relational (i.e. about social exclusion or discrimination), but are preventable through political and economic decisions about social conditions and are often the direct result of capitalist political economies (Pemberton 2015: 9–10). On this view, harm goes far beyond what criminal law would define as harmful, to include issues such as poverty, racism, and social exclusion (ibid.).

The second definition of substantive criminal law, drawing on the work of Williams (1955), is that it is simply the part of the law that deals with behaviour defined as criminal, and results in punishment by the State when a person is found guilty of breaking the law. In other words, criminal law is different from other kinds of law (like civil law, which deals with other forms of behaviour that result in some form of compensation after a finding of guilt) because it uses a different procedure to respond to people who break it. Criminal law accepts that it is fragmented and diverse in nature. However, it uses the criminal justice process to impose consistency and objectivity on itself and to present an image of itself to society as being consistent and objective (Farmer 1996). This hides the reality that criminal law is not as objective or standardised as it presents itself to be (Norrie 2014). In fact, criminal law has a range of functions. Some of these functions are instrumental, such as the idea of the rule of law discussed next; some are ideological, such as the prioritising of the interests of the powerful in society over those of the powerless (Lacey 1993). The following chapters of this book identify these functions, as criminal law and criminal justice are analysed as part of the same social process of criminalisation (Lacey and Zedner 2017), or regulating bad or risky behaviours.

The standard and burden of criminal proof

An example of the distinctive nature of criminal law procedure lies in the standard of proof needed to find guilt in each case. Criminal law establishes guilt by evidence of guilt beyond reasonable doubt. The civil law establishes guilt by evidence of guilt on the balance of probabilities, which requires a lower standard o...