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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 lliberties 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 oof ‘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 oof 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 wwhich 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 oonly 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.


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 mmost 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 ppremises. 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 mmany 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 bbeing 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 tthat even people who intentionally inflict harms may be acquitted if they acted in self-defense, while insane, while under duress, and so on.

The contours of the criminal law are thus determined by the interplay between the range of offences, the scope of liability, and the conditions of liability. Inevitably there are times when the discussion focuses on one of the elements only, but the relevance of the other two must always be kept in view if the discussion is not to lose perspective.


It was suggested that the reach of the criminal law depends on the range of offences, the scope of criminal liability, and the conditions of criminal liability. Writings on English criminal law have focused largely on the conditions oof liability and on the scope of liability, and there has been a tendency to devote little attention to the rightness or wrongness of criminalizing certain product. Apart from discussions of the relationship between sexual ‘morality’ and the criminal sanction, the boundaries of the criminal law have usually been treated as ‘given’. This, in turn, may foster the assumption that those boundaries represent some kind of objective dividing line between the criminal and the non-criminal, whereas the actual range of ooffences is best explained historically as the product of various political and other forces in particular social contexts.

The system of criminal law may be justified as a mechanism for the preservation of social order. As a type of law, its technique is condemnatory and it authorizes the infliction of state punishment. To criminalize a certain kind of conduct is to declare that it should not be done, to institute a threat of punishment in order to supply a pragmatic reason for not doing it, and to censure those who nevertheless do it. This use of state power calls for justification by reference to democratic principles, and justification in terms of sufficient reasons for invoking this coercive and censuring machinery against individual subjects. Reasons of the second type usually relate to concepts such as harm and culpability.

The purpose of this chapter is not to search for some objective benchmark of criminality or for some general theory, which will enable us to tell whether or not certain conduct should be criminalized. The range of actual and potential crimes is so wide and variegated that this seems unattainable. In respect of most kinds of conduct, the issues arising are complex and far-reaching. The ppurpose is rather to identify some principles that may tell for or against making conduct criminal, and to point out some good or bad reasons. Although it is true, as already argued, that the frontiers of criminal liability are not given but are historically contingent, it remains important to strive to identify those interests that warrant the use of the criminal law and to refine notions such as harm which play so prominent part even in political discussions of these questions.

The concern will chiefly be legislative decisions to extend or curtail the criminal law, and the reasons which have been significant or which should have been significant in those decisions. The impact of the criminal law on citizens is determined not so much by the legislature as by the practices of the various law enforcement agents-chiefly police officers, but also officials from HM Customs and Excise, the various statutory inspectorates, and so on. Thus the legislature may be said to provide the tools, resources, or authority for law enforcement agents when it creates a criminal offence, but decisions about when to invoke and when not to invoke the available powers are taken by enforcement officers. The exercise of discretionary power ttherefore provides the key to practical instances of criminalization.


Creating a new criminal offence may often be regarded as an instantly satisfying political response to public worries about a form of conduct that has been given publicity by the newspapers and television. The pressure on politicians to be seen to be doing something may be great, and considered responses such as consultation and commissioning research may invite criticisms of indecision and procrastination. Thus, in many countries, the growth of the criminal law may reflect particular phases in contemporary social history, as written by the mass media and politicians.

We may consider two examples of recent legislative extension of the range of the criminal law: the offences in Part V of the Criminal Justice and Public Order Act 1994 and, first, the offence of causing harassment, alarm or distress in the Public Order Act 1986. In its reform of public order law in the 1980s, the government added to the ...

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