Criminal Law: The Basics

Jonathan Herring

• Publisher: Routledge
• Year: 2009
• ISBN:
  9781135270568
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Criminal Law: The Basics is an insightful introduction to the legal aspects of criminal acts, ranging from battery to burglary and harassment to homicide. Starting with an in-depth exploration of the very concept of crime, this book considers such questions as:

• how should we decide what is criminal and what isn't?
• what is the difference between murder and manslaughter?
• could you ever be guilty of stealing your own property?
• what defences are available to those accused of crime?

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The book features numerous case studies from the infamous to the bizarre and key questions for consideration throughout. Each chapter ends with lists of relevant cases, statutes and suggestions for further reading, making this an ideal starting point for anyone interested in criminal law.

BASIC CONCEPTS IN CRIMINAL LAW

The likelihood is that you have committed a crime. Probably lots of them. A recent survey found that the average person committed a crime once a day. Of course, most of these are relatively minor ones such as littering or parking offences. Others such as speeding or using a mobile phone while driving may be regarded as trivial by some, but breach of them can lead to death. Nine per cent of all men aged eighteen were found guilty of, or cautioned for, an indictable offence in 1997–98. An indictable offence is one that can be tried in the Crown court, which means it is a serious offence, usually carrying a sentence of imprisonment. Of course, many more such offences will have been committed by eighteen-year-olds who were not caught. It probably won't surprise you that the percentage of eighteen-year-old women who committed an offence was far less. Of course, we cannot know for sure what the statistics are for offences where the person is not caught by the police. It seems in a given year 33 per cent of young men and 21 per cent of young women use illegal drugs, but few of them reach the courts.

So, given the likelihood that you have committed an offence, or are likely to be convicted of an offence, it may be a good idea to read this book carefully!

Let us look a bit more at some of the statistics about crimes.

STATISTICS

• There were 78,976 men in prison in August 2008 and 4,320 women.

• There were 78,976 men in prison in August 2008 and 4,320 women.

• There was a 3 per cent chance of being a victim of crime in 2007/08. However, if you were a young man aged sixteen to twenty-four the risk increased to 13 per cent.

• The proportion of recorded crimes cleared up by a sanction detection reached 28 per cent in 2007/08.

• The risk of being a victim of crime at some point in your life was 22 per cent for 2007/08.

• The British Crime Survey (BCS) estimated that there were approximately 10.1 million crimes against adults living in private households in 2007/08, compared with 11.3 million in 2006/07.

• There were just under 5 million crimes recorded by the police in 2007/08, a fall of 9 per cent compared with 2006/07.

WHAT CONDUCT SHOULD BE CRIMINAL?

How should we decide what behaviour should be criminal and what should not? A common answer is that it should be behaviour which is immoral and harmful. However, fairly obviously there are many things which are immoral or harmful which are not crimes (committing adultery; spreading malicious gossip about someone; lying to your friends) and there is some behaviour which is criminal but which some people may not regard as harmful or even immoral. (Saying something blasphemous may be an example.) There is clearly more to defining crimes than determining whether behaviour is immoral or harmful. Indeed, the decision about what behaviour is criminal tells us a lot about society and its values. So this question deserves further discussion.

THE HARM PRINCIPLE

A popular starting point for those considering how decisions are made about which conduct should be criminal is the ‘Harm Principle’. This principle, most famously articulated by J. S. Mill, states that behaviour should not be criminal unless the behaviour causes harm to another person. This means that behaviour which is not harmful should not be made criminal, even if other people might believe that the behaviour is immoral. Picking your nose may be unpleasant but it does no one harm and so on the basis of the ‘harm principle’ it should not be criminal. But it is important to realise the limited role the ‘harm principle’ plays: it is not telling us what behaviour should be criminal, rather it tells us what behaviour should not be criminal, namely behaviour which is not harmful.

The primary role of the ‘harm principle’ is to combat ‘moralism’. Moralists would seek to use the law to impose moral standards on people through the criminal law. A famous debate over the role of moral issues in criminal law is that between Lord Devlin and Herbert Hart. They were writing in the 1960s about the Wolfenden Report which was considering the criminalisation of same-sex sexual activity, although their debate was on the broader issue of enforcing morality through the law. Lord Devlin argued that it was important for a society to have a common morality. When this common morality was breached, that could harm the structures and security of society. Society was therefore entitled to protect its moral foundations by criminalising acts which infringed its moral codes, even if that behaviour was not harmful to others. He suggested that the strength of feeling of ordinary people would indicate that the taboo behaviour was an important part of the moral fabric of society.

It must be admitted that there are few who would today support Lord Devlin's approach. One objection is that while there may in the past have been a ‘common morality’, in today's society, with such a broad range of religious, moral and political views, it would be hard to find a common morality. Another is that even if there was it is unlikely that a few people breaching it would, in fact, have harmed the moral fabric of society. Granted there may be a few people somewhere in the country committing bigamy or bestiality under cover of darkness, but they are hardly threatening key moral principles. A more thorough objection is that individuals should be free to pursue their own visions for how they wish to live their lives. To require a person to act in a particular way just because others find how a person chooses to live immoral is unjustifiable.

There are not many moralists who are influential in our society today. A politician who sought to make sex outside marriage illegal on the basis that such behaviour was sinful would not get far in their career and would win few votes! But bear in mind, the view that criminal law should not be used to impose moral standards is itself a moral view.

The harm principle is influential and important and there are very few people who would disagree with it at a general level. However, it has been beset by difficulties in defining one of its key elements: harm. The following are some of the key questions that arise in seeking to define harm.

• Is harm to self covered? Conduct which harms other people clearly can be punished under the harm principle, but what about harm to yourself? Should it be an offence to do yourself an injury? It is clear that we do have crimes which are primarily designed to protect people from their own stupidity. The law requiring the wearing of seatbelts is one obvious example. But, generally we do allow people to do things which are harmful to themselves: eat unhealthy food, enter relationships with unsuitable people, etc. Some people believe that the criminal law should never be used to protect people from themselves. To do so would be to become moralistic.

• Is offence caused to others? If a person were to walk down a street naked, no one would be hurt, but some people might be distressed or offended. Can offence or distress be harm for the purposes of the harm principle? Again, this is an issue on which a variety of views are held. If offence is covered how many people must be offended? If conduct which could possibly cause offence is covered then the criminal law would be very broad, because almost anything might be found offensive. However, if we require a majority of people to find the conduct offensive, would that mean that conduct highly offensive to a minority group should be permitted which might increase discrimination against them?

• Is risk of harm covered? Does the harm principle prohibit the punishment of conduct which is not itself harmful? On a literal reading it would, but most supporters of the harm principle would support the criminalisation of conduct which endangers others but does not harm them. One example may be offences involving drink-driving. Even if the drunk driver manages to get home without hurting anyone such conduct carries a high risk of harm to others.

A QUESTION TO PONDER

Should it be illegal for a man to pay a prostitute for sex? A moralist may take the view that such conduct is immoral and so should be made illegal for that reason alone. Under the harm principle it would be necessary to point to a harm to justify the intervention of the criminal law. It might be argued that the prostitute is harmed by the act in that it degrades her. However, some would reply that if she has consented to the act then it is not for anyone else to assess whether it is harmful to her. It might be suggested that the harm could be found in the wider community by arguing that prostitution encourages negative attitudes towards women. Another argument might be that many women are trafficked into prostitution and the man is either having sex with a trafficked woman or he is encouraging prostitution, which encourages the practices of prostitution. Either way, it can be seen as harmful. Which, if any, of these arguments would you find the most convincing?

BEYOND THE HARM PRINCIPLE

It is important to appreciate that the harm principle tells us what conduct should not be criminalised. It does not tell us what conduct should be criminalised. Supporters of the harm principle do not suggest that all harmful conduct should be criminalised. That would lead to far too broad a range of criminal law. So the harm principle is best seen as a doorkeeper. It keeps out of consideration for criminalisation non-harmful behaviour, but it has nothing to say about what should be criminal.

So how do we decide what should be criminal? Surprisingly, that is a question which has received relatively little attention. The reason is, in part, that the issue is hugely complex. It involves balancing a wide range of different factors and it is difficult to say how they should be weighed. In reality, of course, the question of criminalisation often turns on politics. So the high-minded principles that we are discussing next may play little role in the rough-and-tumble world of parliamentary debate, where what will win votes counts for much more than the musings of philosophers and lawyers who have addressed this issue.

Nevertheless, at a theoretical level, here are some of the issues which would need to be considered:

CRIMINALISATION AS A LAST RESORT

One issue is whether criminalising behaviour is seen as something undesirable which requires a strong justification or whether criminalising behaviour is not in itself necessarily bad. This is a very important question. If criminalisation is seen as something that requires a very strong justification then we would need to be persuaded both that:

• The conduct caused a serious harm.

• There was no other way of preventing the harm.

The second point is that even if we locate harmful behaviour we should prefer to use other means of tackling the behaviour. Let us say, for example, that dog fouling in a park had got so bad that children were not able to use the park. It may be that taking photographs of dog owners who allowed their dogs to foul and posting them on the Web or in public places may be an effective deterrent and that criminal law would not be used. Or it may be that educating dog owners about the dangers of dog fouling would be sufficient. Indeed, one might think that many of the wrongs that trouble society might be better addressed by more informal and less coercive ways than using the criminal law.

So why might someone take the view that criminalisation should be regarded as a ‘last resort’? A popular reason is that we prize autonomy, that is, the freedom to live our lives as we wish. The government should restrict what we do only if there is a very good reason for doing so. The criminal law with its risk of imprisonment and its condemnatory message is a particularly serious intervention in our freedom and should be used only if absolutely necessary. A slightly different reason is that it is better for people to work out for themselves what behaviour they should or should not do. The criminal law in ordering people how to behave discourages people from thinking issues through for themselves.

There are some who do not accept these points. They argue that criminal law should not be regarded in a negative light, as an evil to be avoided, except in the most serious of cases. To them criminal law can provide an important structure for society to operate within, to protect vulnerable members of society and to enable us to live together in communities. Indeed, the criminal law protects us from harm inflicted by others and so in a sense enhances our autonomy. Seen in this more positive light, criminal laws do not require a particularly strong justification, only evidence that they contribute to the general well-being of society.

CRIMINAL LAW AND HUMAN RIGHTS

There are certain rights that we have which many of us treasure. The rights of liberty, free speech and dignity are seen as a central aspect of our humanity. By referring to people's human rights a case can be made for requiring there to be a particularly strong justification for depriving people of a basic human right. Let us take an example. The law on burglary prevents you entering another person's house with intent to steal. That law is not a grave infringement of your rights. There are lots of other things you can do apart from burgling people's houses. However, a law which made it illegal to have sex with a person of the same sex would have a significant impact on gay and lesbian people. It would mean they would not be able to engage freely in sexual relations and that would be an infringement of their private life. It is an infringement of their human rights on a completely different scale from the law on burglary, for example. In short, the value of the activity has to be taken into consideration, as well as the harm it may cause.

This point indicates that when considering whether behaviour should be criminalised we should consider not only the harm caused by the behaviour but the extent to which criminalising behaviour would interfere with a person's rights. This point is also relevant, as we shall see, in that it means that offences should be narrowly drafted. So that if a person's rights have to be interfered wit...