Law for Criminologists

A Practical Guide

Ursula Smartt

• Publisher: SAGE Publications Ltd
• Year: 2008
• Print ISBN: 9781412945707, 9781412945691
• eBook ISBN: 9781446243695
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

?This book is a triumph in its clarity, scholarship and sheer scope. It is increasingly vital that criminologists understand crime and the criminal justice system in depth, and Ursula Smartt unmasks the mysteries and lays bare the complexities of law like few other writers on the subject. This is the book on criminal law that should be on the shelf of everyone connected to the criminal law?

- Baroness Helena Kennedy QC

?Law for Criminologists is a timely and concise introduction for those in criminology and law. Combining accessibility and scholarship, it will be welcomed by students and lecturers alike?

- Dr Azrini Wahidin, Reader and Programme Director for Criminology, Queen?s University Belfast

?Highly informative, comprehensive and reader-friendly - this groundbreaking book is essential reading for all who are engaged in the study of criminology?

- Peter Joyce, Manchester Metropolitan University

This practical guide introduces students to the basic principles of the law, enabling a comprehensive understanding of criminology and criminal justice.

Law for Criminologists will enthuse the student and teacher about the law whilst giving sound advice on how to achieve a thorough comprehension of the topic. Striking a much-needed balance between essential law for criminologists, and commentary on current legal issues, this book provides the reader with a full understanding of:

" the workings of the law in England, Wales, Scotland and Northern Ireland

" the European Union legal frameworks

" the law of evidence and the criminal process

" punishment and sentencing

" human rights issues

" the differences between youth justice and adult criminal legislation

" how to undertake independent legal research and further reading in the discipline.

Packed with extensive learning aids including case studies, boxed notes, sample examination questions, appendices of statutes and cases and a comprehensive glossary, this book is vital for all students in criminology and criminal justice. As well as an extensive foreword by Baroness Helena Kennedy QC.

1

WHAT DETERMINES A CRIMINAL TODAY?

---

Overview

Chapter 1 examines:

• The distinctions between crime and deviance
• The rationale behind why the law changes over time
• The changing nature of criminal offences
• The way criminal statistics are presented and interpreted
• The role of the victim in criminal procedure

---

The study of criminology today includes the understanding of the concept of globalisation of crime which examines the role that crime plays as an agent of social change. Linked to criminalisation and social development, you can begin to understand the political economy of crime and crime in transitional cultures, such as the war on terror, the globalisation of economies, and the increasing social diversity and division in our societies.

The boundaries between public and private life have become increasingly blurred with high levels of private surveillance, from CCTV in shopping malls to credit checks in mobile phone shops. Some see the increasing surveillance as a net result of ‘joined-up government’ and as an interference with civil liberties. Governments might see it as dealing effectively with a range of social problems and crime control. The result is a mass of new criminal justice legislation which is both civil and criminal in nature. This book seeks to make the link between civil and criminal law and the relevant court structures in all three jurisdictions, England and Wales, Scotland and Northern Ireland.

Not only can the police increasingly patrol public and private spaces in the name of ‘terrorism’ now, but local authorities have also been given increased policing powers to impose Anti-social Behaviour Orders (ASBOs), to prosecute for fly-tipping and to evict noisy neighbours. Lord Anthony Giddens links today’s criminal activities to consumerism and economic deprivation but also to terrorism and the notion of a new world order. He argues controversially that we live in a period of ‘high modernity’ (rather than in post-modernity) in which prior trends are radicalised rather than undermined. He links modernity to the post-industrialised world of the 1930s as that of a highly materialistic society and social control (Giddens, 1991a).

Giddens then comments on our ‘surveillance society’ with its ‘visible supervision’ models, such as the police, private security services and CCTV and links these to Michel Foucault who argued that the state will always monopolise the control of crime and violence (Foucault, 1977). Giddens also refers us back to what Jeremy Bentham called the ‘all seeing state’ (Giddens, 1991b: 13ff).

Taking Giddens’ model of ‘risk society’ we can link this concept to our post 9/11 era, namely the terrorism atrocities in New York, Washington DC and Pennsylvania on 9 September 2001 and the London bomb attacks of 5 and 21 July 2005, and see how governments are now dealing with terrorism threats and public fear of crime in a global agenda. The main facts surrounding these attacks are too well known to recall here; it is enough to record that they were atrocities on an unprecedented scale, causing many deaths and destroying property of immense value.

Ulrich Beck, one of Europe’s leading social theorists, has also analysed the impact of our global ‘risk society’. Beck re-examined the essentially negative concepts of ‘post-industrial’ and ‘post-Enlightenment’ theories and how ‘risk’ has impacted on current social developments of personal and public life. He argues that increasing legislation has changed the whole social strata. By recognising that diversity, individualism, scepticism and fear are now part of our Western culture, Beck calls our society a ‘new cosmopolitanism’ and encourages a form of global morality, shared risk and a communal responsibility to crime (1992, 1999).

Putting these theories into context, whilst the UK has faced a variety of terrorist threats in the not so distant past, by the IRA or Al Qaida, a unique combination of factors has emerged, namely a globally united front by all members of society and within the European Union, or as the Labour Home Secretary, Jacqui Smith, put it in July 2007, that people in the UK will not be ‘intimidated by those [terrorists] who wish to destroy our way of life and our freedoms’ (Jacqui Smith’s response to the terrorism threats to UK airports after the attempted bombing of Glasgow Airport on 30 June 2007).

1.1 Making distinctions between crime and deviance

---

As part of your criminological legal studies, you may well be asked to note down some typical criminal offences. You might then mention burglary, robbery, assault or possibly rape. But, would you have made a note of identity theft, river pollution or the killing of passengers on a crowded commuter train?

An act punishable by law, as being forbidden by statute or injurious to the public welfare … An evil or injurious act; an offence, a sin; esp. of a grave character.

Crime then has multiple meanings and definitions and comes down to a social construct, that is, every society defines ‘crime’ in different ways. And what would you call a ‘priority crime’ – a favourite term now used by law enforcement agencies? Would it be mobile phone theft by children from children at school? Or having your front teeth kicked in by your husband? Or graffiti on bus shelters? Or an attack on a gay bar?

First, you need to distinguish between the strictly legal definition of a crime, that is in statute (Act of Parliament) and the contravention of certain codes, conventions, or morals, known as normative definitions (see Chapter 2.1). The latter ones would not be ‘law’ but would reflect moral or religious codes which usually define socially acceptable behaviour. What may be against the law in one country might well be acceptable behaviour in another state, such as bigamy.

It is generally believed that those who act involuntarily do not deserve punishment nor would their punishment serve any useful purpose. An individual who lacks control over his criminal actions is generally not regarded as being responsible for the consequences of those actions and incurs no criminal liability (see Chapter 5.3). To summarise, a crime could be defined as:

• An activity that is classified within the criminal law of a country
• A strictly defined legal definition in form common law or statute in England and Wales
• Legally defined criminal acts
• An illegal act which deserves punishment by the state
• Criminal activity defined by the British Crime Survey (BCS)
• Some legally defined crimes in the UK may be legitimate acts in other countries (e.g. bigamy)
• An evolving social process in the criminal law, shaped by social forces and socio-political decisions made by individuals.

Deviance

---

What then is the difference between a crime and what criminologists call ‘deviant behaviour’? Deviance is a classical theme, which explains the causes of crime. The study of deviance is concerned primarily with the construction, application and impact of stigma labels. For example, there are strongly perceived links between juvenile offending and the home (familial) environment (see Chapter 9.1). Other theorists discovered that deviance and delinquent behaviour are learnt through observing, imitating and ‘modelling’ others (refer to McLaughlin and Muncie, 2006).

Critical criminologists like Professors David Downes and Paul Rock established that penal policies and resulting changes in criminal legislation are usually consequences of wider social changes. These, in turn, have influenced law enforcement priorities and legislation such as policing (see Chapters 6.2–6.4) Downes and Rock (2003) explained deviance as the difference between what is morally wrong and what is against the law – that is criminally wrong – within a given society:

The sociology of crime and deviance is not one coherent discipline at all but a collection of relatively independent versions of Sociology. (Downes and Rock, 2003: 1)

To summarise, deviance is:

• Reference to behaviour that is morally or ‘normatively’ wrong
• Delinquency which can (but not necessarily does) lead to criminal behaviour
• Dysfunctional family background and how this may lead to criminal culture and future criminal behaviour, such as the ‘yob culture’ or gang violence

Criminological studies have traditionally focused on subcultures, such as punks, rockers, skinheads or the dance culture. Some of these phenomena have been linked to inequality and inner city deprivation. Cohen’s (1972) definition of deviance is linked to economic deprivation – Marxist criminology – whereby not having a good career or owning consumer goods may lead some individuals to commit crime because they perceive that they are being deprived of something. Other criminogenic factors include gender – young males are more likely to offend than females – or inadequate parenting. How some agencies have taken positive steps to address particularly youth crime can be seen in Chapter 9.

One term you may have come across in your theoretical studies is anomie. This concept was first defined by the French Sociologist Émile Durkheim (1858–1917) who established the idea that when people find themselves in rapidly changing social conditions, they will lose the social guidelines (norms) of what is ‘acceptable’ behaviour. Durkheim’s studies concentrated on how and why people break the law in society. He suggested that crime was ‘normal’ in a modern industrialised society and hypothesised that social change in conditions could lead to unacceptable behaviour and deviance (anomie), particularly in young people (Durkheim, 1893).

Durkheim coined the term ‘anomie’ or lawlessness (derived from the Greek a-nomos meaning ‘lawless’) whereby he explained that anomie resulted in the transition from the pre-industrial society to the industrial and mechanical society. He then argued that deviant and anomic behaviour can lead to exclusion from a given society and a collective punishment of that individual (see also Jones, 2006: 156ff).

Robert Merton (1938) took the anomie theory a step further, linking it to the social anomie of the post-depression years of the late 1930s in America. By looking at the ‘American Dream’, he portrayed the class struggle in American culture which could lead to crime. His anomic vocabulary included ‘retreatism’ and ‘rejection’. He linked his theory to practical examples like Al Capone and the godfather-type gangster, whose rebellious and amoral behaviour became part of a celebrated culture in American society, that placed high value on economic affluence and social ascent (see Downes and Rock, 2003: 104–140).

Glueck and Glueck (1950) linked deviance and criminal behaviour to dysfunctional family background, when they compared 500 well-behaved schoolboys from a ‘good’ family background with 500 institutionalised delinquents from care and foster homes. The authors found that 66 per cent of the delinquents had a criminal father or brother, compared with 32 per cent in the ‘goodies’ control group (see Glueck, 1934: 235–237).

Bowlby (1944, 1979) concluded that maternal deprivation through rejection was linked to childhood antisocial behaviour (anomie) and delinquency and Hirschi (1969) in his ‘control theory’ found that children from larger families were harder to discipline and likely to receive less parental attention than small families.

The causes of crime (criminogenic factors) can be defined as:

• Deviant and criminal behaviour influenced by societal and familial factors, known as ‘the environment’
• Causes of crime, largely linked to life style, life-cycle and familial conditions in which the individual lives

You may find reference to the ‘broken windows’ theory, a term first used in crim...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Preface: Baroness Helena Kennedy QC
• Introduction: Why Study the Law as a Criminologist?
• 1 What Determines a Criminal Today?
• 2 The Legal System of England and Wales
• 3 The Legal Systems of Scotland and Northern Ireland
• 4 European Union Law and EU Law Enforcement
• 5 Essential Criminal Law
• 6 The Criminal Process
• 7 Punishment and Sentencing
• 8 Human Rights Legislation
• 9 Young People and the Law
• Appendix 1 Table of Statutes
• Appendix 2 Table of Cases
• Appendix 3 Glossary of Criminological and Legal Terms
• Appendix 4 Useful websites and internet sources
• Bibliography
• Index