CRIMINAL JUSTICE AND THE CRIMINAL LAW 3
THE CONTOURS OF CRIMINAL LIABILITY 4
THE POLITICS OF LAWMAKING 7
ASSESSING THE BUSINESS OF OFFENCES 8
MORALLY WRONG BEHAVIOR 9
VICTIMLESS CRIMES 10
USED LITERATURE 13
CRIMINAL JUSTICE AND THE CRIMINAL LAW
The operation of the criminal law requires little explanation in clear cases. Someone who deliberately kills or rapes another is able to be prosecuted, convicted, and sentenced. Criminal liability is the strongest formal condemnation that society can inflict, and it may also result in a sentence, which amounts to a severe deprivation of the ordinary liberties of the offender. Of course, there are another official deprivations of our liberties: taxation is one, depriving citizens of the proportion of their income, or adding a compulsory levy to commercial transactions (for example, Value Added Tax). And taxation, no less than criminal law, may be seen as justified by the mutual obligations necessary for worthwhile community living. But most cases of taxation do not carry any implication of ‘ought to do’; whereas criminal liability carries the strong implication of ‘ought to do’. It is the censure conveyed by criminal liability, which marks out its special social significance, and it is this censure (as well as the liability to state punishment), which requires a clear social justification.
The chief concern of the criminal law is seriously antisocial behavior. But the notion that English criminal law is only concerned with serious antisocial acts must be abandoned as one considers the broader canvas of criminal liability. There are many offences for which any element of stigma is diluted almost to vanishing point, as with speeding on the roads, illegal parking, riding a bicycle without lights, or dropping litter. This is not to suggest that all these offences are equally important; it can be argued, by reference to the danger to others that exceeding the speed limit ought to be regarded in a more serious light than commonly appears to be the case. Yet it remains true that there are many offences for which criminal liability is merely imposed by Parliament as a practical means of controlling an activity, without implying the element of social condemnation characteristic of the major or traditional crimes. An alternative approach might be to create a new regulatory agency and to invoke some kind of civil process, but this is generally regarded as too complex or too expensive, given that the police force (and some existing regulatory agencies) may be adapted to deal with the problem. Thus, the only feature which distinguishes some of these minor offences from civil wrongs, like breach of contract and liability in tort, is the decision by Parliament that they shall be criminal offences, attended by criminal procedures and triable in criminal courts. Therefore, although some offences in the criminal law are aimed at the highest social wrongs, there is no general dividing line between criminal and non-criminal conduct corresponding to a distinction between immoral and moral conduct, or between seriously antisocial and other conduct. The boundaries of the criminal law are explicable largely as the result of exercises of political power at particular points in history.
THE CONTOURS OF CRIMINAL LIABILITY
When we refer to criminal liability, what sort of conduct we are talking about? The answer may differ not only from one country to another, but also from one era to another in the same country. Some acts of homosexuality and abortion, which were criminal in England before 1967 are not criminal now, whereas some forms of insider trading on the stock market and the possession of indecent photographs are criminal now, although they were not until a few years ago. There are certain seriously antisocial forms of conduct, which are criminal in most jurisdictions but, in general, there is no straightforward moral or social test of whether conduct is criminal. The only reliable test is the formal one: is the conduct prohibited, on pain of conviction and sentence?
The contours of criminal liability may be considered under three headings: the range of offences; the scope of criminal liability; and the conditions of criminal liability. The range of criminal offences in England and Wales is enormous. There are violations in respect of:
1. The person, including offences of causing death and wounding, sexual offences, certain public order offences, offences relating to safety standards at work and in sports stadiums, offences relating to firearms and other weapons, and serious road traffic offences;
2. General public interests, including offences against state security, offences against public decency, crimes of breach of trust, offences against the administration of justice, and various offences connected with public obligations such as the payment of taxes;
3. The environment and the conditions of life, including the various pollution offences, offences connected with health and purity standards, and minor offences of public order and public nuisance; and
4. Property interests, from crimes of damage and offences of theft and deception, to offences of harassment of tenants and crimes of entering residential premises. As in many other legal systems, there is a whole host of miscellaneous criminal prohibitions as well.
When we turn to the scope of criminal liability, we raise the question of the circumstances
in which a person who does not cause one of the above harms may, nevertheless, be held criminally liable. In legal terms, the question has two dimensions: inchoate liability and criminal complicity. A crime is described as inchoate when the prohibited harm has not yet occurred. Several of the offences mentioned are defined in terms of ‘doing an act with intent to cause X’, and they do not therefore require proof that the prohibited harm actually occurred. More generally, there are the inchoate offences of attempting to commit a crime (e.g. attempted murder), conspiring with one or more other people to commit a crime (e.g. conspiracy to rob), and inciting another to commit a crime. These offences broaden the scope of criminal liability considerably by providing for the conviction of persons who merely tried or planned to cause harm. Turning to criminal complicity, this doctrine is designed to ensure the conviction of a person who, without actually committing the full offence himself, plays a significant part in an offence committed by another. Thus another may convict a person of aiding and abetting another to commit a crime, or counseling or procuring the commission of crime.
The conditions to be fulfilled before an individual is convicted of an offence vary from one crime to another. There are many crimes, which require only minimal fault, or no personal fault at all. These are usually termed offences of ‘strict liability’: some of them are aimed at companies, but others (including many road traffic offences) are aimed at individuals. More of the traditional offences, which have been penalized by the common law of England for centuries, are said to require mens rea. This Latin term indicates, generally, that a person should not be convicted unless it can be proved that he intended to cause the harm, or that he knowingly risked the occurrence of the harm. The emphasis of these requirements has been upon the defendant’s personal awareness of what was being done or omitted, although some judicial decisions have created exceptions to this. Beyond the mens rea requirement, which may differ in its precise form from crime to crime, there is a range of possible defenses to criminal liability, so that even people who intentionally inflict harms may be acquitted if they acted in self-defense, while insane, while under duress, and so on.