Lecture 1: (a) the aims and functions of the criminal law

DEFINING A CRIME AND THE CRIMINAL LAW

Formal procedural definition: a crime (= an offence = a criminal offence) is a breach of the criminal law
for which a person may be prosecuted (usually by the State), convicted and sentenced to punishment.

The criminal law is, in its formal meaning, consists of all the crimes which exist at any given time plus a
number of doctrines and principles of interpretation of criminal liability. There are many thousands of
offences in English law, the large majority concerned with detailed matters of regulation of the public
welfare.

- An example of one of these doctrines would be the law of complicity. It is mostly a criminal law
doctrine which has evolved over several centuries.

These formal definitions are useful for distinguishing crimes from breaches of the civil law (breaches of
contract, torts, breaches of trust etc) for which a person may be sued (by a claimant), found liable and
ordered to provide a remedy (eg payment of compensation). Note through the existence of a number of
‘crossovers’: criminal courts have a general power to make compensation orders against convicted
defendants; civil courts may in limited and exceptional circumstances make an award of exemplary
(punitive) damages against a defendant; courts have powers to make certain civil orders against
individuals (such as an anti-social behaviour order or ASBO) to control their future conduct – breach of
the order is an offence.

- Note the difference in language. While we still have a defendant, if someone is claiming for
breach of contract or tort, they are the claimant not the prosecutor. Also, if the claimant wins, D
is found liable as opposed to being ‘convicted’ for a breach of tort/contract and the remedy will
be an appropriate civil remedy.
- Also with regards to ASBO’s and sexual prevention orders, note that liability is up to five years if
they are broken. So there is a lingering question of why someone should be so liable for
breaking the orders when the conduct itself is not criminalised.

But these formal definitions do not say anything about the sort of conduct which is – or should be –
criminal, or about the basis on which a person may be convicted and sentenced for it.

WHY DO WE HAVE CRIMINAL LAW ?

“Why are certain kinds of action forbidden by law and so made crimes or offences? The answer is: To
announce to society that these actions are not to be done and to secure that fewer of them are done.
These are the common immediate aims of making any conduct a criminal offence…” (Hart, Punishment
and Responsibility (Oxford, 1968) p6.

- This is a classic statement of the aim of the criminal law as set out by Hart. Here, he is
distinguishing between what can be termed the expressive functions of the criminal law and
the reductive functions.

(a) Expressive functions of the criminal law: condemnation, fair warning and fair labelling
The expressive aim is setting out to express the rules of criminal liability. It more than one dimension
as it were as part of the criminal law is setting out rules of conduct for citizens and the criminal law
in that sense expresses a large no of prohibitions on what people may or may not do.

However, the criminal law also sets out a number of rules for officials in the criminal justice system

- How offences are classified

- How offences are graded in terms of seriousness (which has consequences in terms of level
of punishment)
- It gives courts rules about ways in which criminal offences should be tried
o E.g. rule that burden of proof likes on prosecution. It’s not a rule for citizens but a
rule for the court

Condemnation

Ashworth makes the point that when the law is setting out its rules on the criminal law for citizens,
it’s saying these actions aren’t to be done; these actions are to be condemned. Part of the purpose
of setting out these rules is that the criminal law has an educative function. Setting them out in this
way has a kind of condemnatory function.

So from this point of view, one can say that in a sense the criminal law is a system of ethics

Fair Warning

A further function of setting out the rules of criminal liability in this way is to give citizens fair
warning of when they may be incurring criminal liability.

Fair warning is important when it comes to the principle of legality; where it’s unfair to blame and
punish people when they don’t know they’ve committed an offence

Fair Labelling

This is tied to fair warning and is the idea that if someone is blamed and punished for an offence,
then the conviction also carries a stigma (as well as the actual punishment). People convicted have a
criminal record and this can be quite disadvantageous. The worse the crime the worse the stigma.

The argument is that if the state is imposing a stigma, it has to be fair and justified. So part of the
aims of setting out these rules of conduct clearly is to make clear when labels for stigma may fairly
be imposed for committing certain crimes. A lot of these distinctions are ingrained in the public
conscience. Most people have an intuition of the difference b/w murder and manslaughter. They
may not know the legal difference but are aware there's a moral difference.

(b) Reductive functions of the criminal law: prevention, prosecution and punishment

Reduction functions are the other parts of Hart’s definition. Basically what the criminal law does is to
try and deter people from committing crime by threat of prosecution and punishment and in order
to make that threat real of course when people do commit crime they generally should be
prosecuted and punished otherwise the threat is an empty one.

Cautionary note: the ‘reality’ of crime and the criminal justice process – consider
 - the amount of discretion in the criminal justice system (reporting, investigating, recording,
diverting, prosecuting, bargaining – see esp the Code for Crown Prosecutors , 2010 ed)
- roles of judge and jury in convictions and acquittals (see esp R v Wang [2005] UKHL 9; [2005] 1
WLR 661)

Discretion in the criminal justice syste,

Reporting - There is discretion in terms of what gets reported. Criminologists sometimes call this ‘the
dark figure of crime’ so victims typically exercise a lot of discretion.

Investigating and Recording - Secondly, police exercise a lot of discretion in deciding whether to
investigate certain types of crime or crimes in particular

- So whenever you look at criminal statistics, keep in mind that they can be skewed by all
types of biases and contexts.
- Police have a lot of discretion on how they record crime; they may decide something wasn’t
an offence and the police idea may not correspond with the reality. This has been a
particular problem in the past with domestic violence.

Diverting, Prosecuting, and Bargaining - Another possibility for discretion comes at the prosecution
stage. There is considerable possibility for diverting offenders out of the criminal justice system. E.g.
giving a formal caution and this is the preferred technique with many juvenile offenders. And then it
doesn’t follow that prosecution is automatic.

- The CPS operates a 2 stage test in deciding whether to bring a prosecution for a crime the
police believed to be committed
o Evidential sufficiency
 CPS will review the file from the police and ask if there’s a realistic prospect
of conviction (i.e. is it more probably than not)
 This is sometimes called the 51% rule
o Public interest
 Even if it meets the first test, CPS must be satisfied it’s in the public interest.
Generally if it’s a serious crime it will be but there may be public interest
factors which go against that. E.g. if D is very old or very ill.
- And these are all set out factors in the code of the crown prosecutors available on the CPS
website.

Roles of judge and jury in convictions and acquittals

After evidence has been heard and council made final speeches, judge will sum up evidence in the
case and give the jury a question on what to decide. What the judge cannot do is direct the jury to
convict. (Confirmed by HL in R v Wang [2005] UKHL 9; [2005] 1 WLR 661) Even if the evidence is
overwhelming, D has a right to a jury verdict. And it does happen occasionally that a jury will acquit
the face of overwhelming evidence (sometimes called ‘jury equity’) and it is kind of a discretionary
power juries have.

THE CRITERIA FOR CRIMINALISATION

There are two main aspects to this question;

1. How do you decide whether certain conduct should be criminal or not?

a. Is it enough to have social disapproval?
b. Is it enough that it should be perceived as carrying risks?
2. If one thinks that certain conduct needs social control so we reduce instances of the
conduct, is the criminal law the best method?
a. There will of course be other alternatives. If the conduct involves some sort of
wrongdoing you have the possibility of civil remedies; you may think the conduct is a
tort
b. Another possibility is to license the conduct so it can be carried out under a licensing
regime which can be backed up by offences but the aim of the licensing will be to
regulate the conduct in question
c. You may pursue a campaign of public awareness for instance
d. You might think the state needn’t do anything and it can be left to other institutions;
school, religions organisations

So there are important choices to be made when u deal with criminalisation questions.

- E.g. the HIV question. When it first came to light in the 80s. Could they have made
unprotected sex illegal? They pursued the campaign of public awareness. Criminalising the
transmission of HIV however could be an option and indeed if you recklessly transmit HIV
today, it is a crime.
- E.g. control of drugs. There is an elaborate system for possessing and supplying controlled
drugs. Yet possession of alcohol is not and both have destructive capacities so why the
difference? One is regulated by a licensing scheme and the other attracts severe criminal
penalties and there is an on-going debate on decriminalisation in drug crime mostly centred
on whether possession of small recreational amounts should be decriminalised.

So there is a question of needing some framework to think about criminalisation. Here we can
consider some relevant principles and policies

Principles Policies
Harm to others (or risk of); covers both Protection of...
individual and collective interests
Offence to others Efficiency
Harm to self (paternalism) Side-effects
Legal Moralism

Principles

This list is certainly not conclusive but things to be taken into account. It is common in the literature
to identify 4 relevant principles which can be taken into account. The authority for this scheme is
Feindberg and was expressed in his book, Harm to Others (OUP, 1984)
Feindberg identified 4 relevant principles which could restrict someone’s liberty. His starting point
was that in a liberal democracy, we attach high value to someone’s lib and thus, we need good
reasons to limit someone’s liberty; he then identifies his four principles.

Harm principle

The main question here is whether it is legitimate for the state to prohibit conduct that causes, or
threatens to cause, serious private harm (to other people’s individual interests.) and needs, this is
the question that will be considered when justifying prohibition of that conduct.

It can also include harm to collective or public interests

- Public safety
- Safety on the roads
- Drinking water
- Clean environment etc...

Thus the argument goes the harm principle justifies protection of the collective interest.

When we talk about harm as Feinberg defines it, he suggests that the definition has 2 components to
it;

I. The interest involved is in some way set back by the conduct; it is damaged or made worse.
II. Harm must also involve a violation of a right. Someone must’ve a legal right not to have that
interest set back

E.g.

If you run a high street business, you can’t complain if Tesco opens 2 doors away and undercuts you
as there is no violation of a legal right.

Or on the other hand, if people engage in simple trespass over your property but they’re just walking
along right at the end, you have no significant setback. Indeed, this is the reason that simple trespass
has never been a crime and only a tort.

Offence to others

Under this heading, you can bring crimes like doing things in public which shock and outrage people.
E.g. public indecency, expressions of racial hatred.

Notion of crime to prevent harm to self / Paternalism

Meaning we act or we might think that certain types of conduct might be made compulsory to
prevent someone harming their own interest. Sometimes called paternalism

- Crimes like not wearing a seat belt

- Not wearing a crash helmet on a bike.
- Some people explain some of the drug offences this way

Legal moralism
 - The idea that there may be certain forms of conduct which contravene in a significant way
certain parts of society’s moral code
- Types of conduct which are ethically objectionable even if they don’t’ cause harm or offence
to anyone or the person but we think should be criminalised to preserve parts of society’s
moral code.

It’s not always easy to identify examples which fall within this heading. Further, these headings are
not mutually exclusive. It is possible however to argue that something like prostitution might be
criminalised under the heading of legal moralism. Controversially it might be argued that something
like adult incest is prohibited under legal moralism.

Which principles should we consider?

Mills - Famously in the 18th cent, Jon Stuart mills argued in his famous essay, On Liberty, that the
only justification was the harm principle.

Feinberg - “he harm and offense principles, duly clarified and qualified, between them exhaust the
class of good reasons for criminal prohibitions”

Other theorists of course take a different stand;

Hart accepts all but legal moralism. Devlin on the other hand feels all 4 are relevant.

Policies

Having identified these principles, Feinberg says the actual criminalisation decision has to take
account of certain policies.

Protection of…

- E.g. protection of (vulnerable classes)... children/animals

- In any developed society, one of the key functions of government is to identify groups which
it regards as vulnerable in one way or another and give them additional protect in the
criminal law

Efficiency (of public administration)

There are a great many offences to do with regulating aspects of the public welfare. There are
thousands of these offences and all to do with the efficiency of schemes of regulation

- Health and safety at work e.g. whole range of regulations backed up by criminal sanctions
- Licensing regimes are similar

So the criminal law is often used by government as a way of ensuring speed and efficacy or enforcing
regulation more generally.

Side-effects

But then you also have to consider what may be called side-effects.

Notion of utilitarian constraints on the use of criminal law

 - Because if you criminalise activity, there may be certain costs attached to doing that. For one
thing, you have to think about resources. If you criminalise conduct, there have to be
investigations and prosecutions. The government has to decide how much money it’s going
to make available for that.
- So there is always this question of whether the benefits of criminalisation are worth the
cost.

Also, with goods which are in demand such as drugs for instance, by criminalising it, you’ll almost
certainly create a black market and typically, organised groups take charge of the black market.

- So you need to think about consequences of criminalising activity.

- And depending on the type of conduct, u may create a market of services which is
dangerous for people.
- This is why abortion law was relaxed in the 60s cause of the problems with illegal
abortionists.

And there were also opportunities for blackmail. Before the 60s when the law was changed, a lot of
gay men found themselves victims of blackmail if their activities became known.

R v Brown [1994] 1 AC 212

Here, the defendants were a group of adult male homosexuals who liked to engage is
sadomasochistic practices. They liked to meet in private from time to time and had a number of
rituals they engaged in which amongst other things had a certain degree of genital torture and
mutilation.

The report tells us that no one needed hospital treatment, that no one suffered permanent damage
and all the activity was consensual. They filmed these sessions on video which was then circulated to
other members of the group. One of the videos reached a member of the police who then
investigated thinking they had a ‘snuff movie’

They did identify the defendants who were in due course prosecuted for offences against the person
under the now antiquated Act of 1861. Under the 1861 act, there’s an offence under s20 of
malicious wounding and there’s an offence under s47 of assault occasioning actual bodily harm.
There was no doubt that what the defendants had done amounted to wounding and actual bodily
harm. There is no doubt that the conduct element of the offence exists. The issue in the case
revolved around the question of consent.

What the victims argue at trial is that they were consenting to everything being done. That argument
was rejected by the trial judge as a matter of law and therefore D’s then changed their pleas to guilty
in the hope of getting a reduction on their sentence.

This case cause a strong division in the HL (3-2) split. The interest is in the way the majority and the
minority conceptualised the issue they decided

Majority

The majority conceptualised the issue as one to do with violence and the causing of harm by the use
of violence and they argued that consent is no defence in law generally speaking to violent acts
which cause bodily harm. There are exceptions to this which include violence in the course of a
lawful sport; e.g. boxing, rugby.

The question was whether conduct should be added to the list of exceptions of the rule. So the
majority had the idea that these acts are prima facie criminal and therefore the question is whether
they should decriminalise it.

If we hold that consent was no defence to the causing of harm, and that we don’t want to
decriminalise sadomasochistic behaviour, it is helpful to ask who or what the common law was
protecting. (in the view of the majority).

Three points can be picked out from the speeches.

1. Points to the danger that other people might be recruited in to this particular group of
people (into this activity) particularly minors
a. Clearly thought it was necessary to protect minors from the activity
b. So it looks like a protection from harm argument
c. So it presupposes that you’ve decided that this activity is already a form of harm. So
you can bring this idea under Feinberg’s principle of harm to others. (i.e. it is an
example of the use of that particular liberty limiting principle)
2. The idea that the participants themselves, although they give consent, need to be as it were
protected from themselves. The majority talk about the risk of serious injury from what was
being done. There’s also a suggestion that maybe there’s a risk of disease being passed on.
At this point as it were, the spectre of HIV comes into view
a. This is focusing on the third of Feinberg’s liberty limiting principles; that of
protecting people from themselves (what F calls harm to self; a form of paternalism.
That part of the job of the law may be to protect people from themselves from
giving consent to an activity on the view of the majority they don’t fully understand
the risks their engaging in)
b. Note that paternalism as a justification for criminal liability is quite controversial
3. The majority argued that this is an activity of violence. (as opposed to the minority who
conceive of it as sexual activity) and they focused particularly on the sadistic element. They
argued that the infliction of violence for pleasure is morally objectionable. That the law
shouldn’t be seen to be legitimising cruelty.
a. Looks like a form of what Feinberg calls legal moralism. The moral code of society
objects to violence for pleasure/deliberate cruelty; irrespective of whether it’s
causing harm to anyone.

So if this analysis is correct, one sees the use of 3 of Feinberg’s principles to justify the ban of
sadomasochism

There is one other idea that also appears; that it’d be somehow be unconstitutional for the court to
declare that sadomasochism was legal. They say that any matter for decriminalisation should be a
matter for parliament.

One can understand politically why the majority would take the view (perhaps an eye to the
headlines that’d appear if the HL seemed to legalise sadomasochism). In legal terms however this is
a rather weak argument because no one has ever doubted that the judges have the power to
develop new defences at criminal law to criminal liability. There are in fact notable examples of the
judges developing defensive doctrines.

Minority

For the minority, the approach is very different. The minority said this is not a case of violence at all
but a case of people’s sexual expression. The social purpose of the activity is sexual gratification.
They took a different view of the scope of consent and thought as a matter of law you could consent
to acts which cause u bodily harm short of serious injury.it was note alleged that Ds had suffered
serious injury and for them, what was done was prima facie lawful and the question for them was
whether the acts should be criminalised.

And then the judgments go into some of the relevant factors we talked about above.

Lecture 1: (b) criminal law and human rights

CRIMINAL LAW AND HUMAN RIGHTS

Seems fairly obvious that HR have important implications for the substance of criminal law and they
have equally important implications if not more for the law of criminal procedure and evidence.
These implications affect both the courts when they come to interpret and apply the criminal law
and also the legislature when it comes to the making of criminal law.

The implications are mostly negative in the sense that HR may operate to constrain the power of the
state in imposing criminal liability. The state may find its rights limited under the European
convention. Sometimes, HR may impose positive obligations on the state in the sense of actually
modifying its criminal law to conform with human rights and the convention may impose operational
requirements as it were on the state as well.

DUTIES AND POWERS OF THE ENGLISH COURTS

HRA s6

Under s6, PA’s have a duty to act lawfully; i.e. compatibly with the convention rights. Courts are PA’s
for this purpose, as are the police and the CPS. Basically, all the organisations which are involved in
enforcing and administering the criminal law have a duty under s6 to act compatibly with convention
rights.

HRA s2

Under s2, the courts have a duty to take acct of what we generally call the Strasbourg jurisprudence
in determining any question that arises in connection w/a convention right; note that those words
take account of. The act does not say that courts are bound to follow it.

If the courts are not bound to follow it, it follows that the English courts are free to go further than
the Strasbourg jurisprudence in protecting certain rights; this is not a point of particular concern in
criminal law. But for example, in relation to reverse burden of proofs (quite a lot of statutes put a
bop on the defendant) the English courts now have quite a sophisticated case law which will in some
case uphold those burdens and in some cases decide they are disproportionate and impose lesser
liability. The English case law has gone further that Strasbourg in developing this analysis in part
because of s2.

Rather more different is the case where English courts disagree with the case law. Again, this is not a
big problem on this course. Under the treaty which establishes the European convention, the grand
chamber of the ECtHR is the ultimate authority on the convention. So at the end of the day, the SC
may have to acknowledge that in cases when we have a decision of the ECtHR, then what they say
goes in terms of interpreting the convention.

HRA s3

S3 is the duty to interpret statutes compatibly with the convention as far as it is possible to do so.
Courts have made considerable use of this duty and have come up with some creative
interpretations of certain statutory provisions. (Again more noticeable in the area of procedure and
evidence than substantive law)

HRA s4

S4 is the power to make a declaration of incompatibility to bring legislation in line with convention.
Courts have said they regard s4 as a last resort and will try and use s3 to make the legislation
compatible.

R (Anderson) v Home Secretary [2002] UKHL 46

Till Anderson, it was the practice of the home secretary to fix the minimum period in jail someone
would have to serve for murder. That power of the home sec was challenged by Anderson on the
grounds that this home sec’s power was incompatible with art6. Art6 gives you the right to have an
independent and impartial tribunal determine your criminal liability.

The HL took the view that the determination of the minimum period to be served was part of the
sentencing process, part of the determination of liability and there was no way this power could be
read as compatible with the convention; since the home secretary was part of the executive, he
didn’t qualify as an independent and impartial tribunal. So the power was simply declared
incompatible and now minimum periods are judicially decided by the trial judge.

ECHR ART 7 AND THE PRINCIPLES OF LEGALITY AND CERTAINTY

Art 7 is about the principles of legality and certainty. Art 7 says “No one shall be held guilty of any
criminal offence on account of any act or omission which did not constitute a criminal offence under
national or international law at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal offence was committed.”

This is often called the right of punishment without law (no punishment without law) and is a
powerful article as it prevents retrospective criminalisation. Thus, article 7 would also prevent the
courts themselves from inventing new crimes as if parliament can’t criminalise conduct
retrospectively, neither can the courts. The courts themselves have said they have no power in
modern times to invent new crimes. In previous centuries, they did claim such a power. The leading
authority is a case from 1972; muller v dvp (or something like that)
While that seems quite clear, we know the courts have a power to declare the state of the CL and
that declaratory power can sometimes present a problem in relation to article 7. Suppose the courts
change the understanding of the CL; CL changes under this declaratory theory do have retrospective
effect.

R v R [1992] 1 AC 599

The defendant in this case, (R), was convicted of rape of his wife at a time when they were separated
(though not divorced or under any legal agreement). R challenged his conviction under the doctrine
known as the marital rape immunity. This was an old doctrine of the CL to the effect that a husband
could not rape his wife during the subsistence of the marriage. The theory was that on the marriage
ceremony, the wife gave an irrevocable consent to intercourse at any time during the marriage.

This doctrine had become increasingly discredited during the 20 th century and the case law up to
1990 had made a number of exceptions to the old doctrine. For example, the doctrine didn’t apply
when the H and W were separated under a legal agreement. But those cases had not so far gone to
the extent of saying that immunity had gone when the H and W were simply no longer living
together. Nevertheless, the HL held that this supposed marital rape immunity no longer represented
the CL. It was ‘anachronistic and offensive’ and therefore, the defendant’s conviction was upheld.

No one ever doubted this was correct as a matter of policy (after R v R the LC requested a formal
change in law and it was done)

But there is an argument that what the HL did was incompatible with article 7 because at the time
the defendant did this act in 1989, that act was not known to be a criminal one. Though it might be
said it was reasonably foreseeable at the time that the court would make further exceptions but
nonetheless it was not a crime.

This ‘story’ continues;

SW v UK (1996) 21 EHRR 363

This case involved someone else who’d similarly been convicted of rape in these circumstances, the
article 7 point was taken and the ECtHR rejected it. They said the HL decision in R v R was right. They
said that in R v R, the Hl suggested that the immunity had been gone by 1989. Thus when he forcibly
had intercourse with her in 89, the immunity no longer existed thus he couldn't rely on it thus it
wasn’t a case of retrospective criminalisation at all. So on that basis ECtHR was able to say there was
no violation.

While the decision may seem to make sense, the fact remains that at the time R was convicted no
one was sure whether the act was criminalised. However it’s now been taken that the effect of the
HL decision was to abolish the immunity for all purposes.

R v C [2004] 1 WLR 2098

There is then a further marital tape case in 2004 but it’s a so called ‘historical sex abuse case’ which
typically involves children saying they were abused years ago. This involved a wife saying she was
raped in 1970. If you looked at the case law then, none of the exceptions to the immunity were in
existence at that point of time.
However, the CA followed a decision of the HL in R v R and said the HL has decided the immunity is
no longer law. They upheld the conviction in R v R, that immunity is gone from the CL and therefore
can’t be relied on by D.

So the message seems to be that although retrospective criminalisation is barred by article 7 in

terms of new crimes, it does get a bit ‘finessed’ when it comes to doctrines of the CL which can be
declared by the courts to be inoperative. If people didn’t so thoroughly agree with the policy of what
the HL did, there might not have been agreement in Strasbourg. But since there was such thorough
support for it Strasbourg seemed to defer to the judgment of the English court.

Certainty of Law

This principle of legality in article 7 has been taken further in that no only that must conduct be an
offence at the time of the act, but also that it’s elements should be defined with reasonable
certainty.

There’s a line of Strasbourg cases which uphold this principle. The idea is that offences ought to be
defined sufficiently precisely so that people can regulate their conduct accordingly. The idea is that
people should be able to foresee with a reasonable degree of certainty whether certain conduct is
going to result in prosecution and punishment and then they can take appropriate avoiding action.

So the principle was well-established in a line of Strasbourg cases and domestically, it was repeated
in SW v UK. It is taken a step further by HL in Re Purdy

Re Purdy [2009] UKHL 45; [2009] 3 WLR 403

This was involved a woman called denny purdy who is suffering from MS, a progressive and
incurable condition. She envisages that with the progress of this disease, there will come a time
she’ll want to go to Switzerland (to the dinistag clinic?) and commit suicide but she couldn’t do this
w/o the assistance of her husband. What she wanted to know were in what circumstances might her
husband be prosecuted for assisting her to commit suicide

(note: there’s a statutory offence of assisting suicide under s2 suicide act 1961. And that’s quite
clear. If you help or encourage anyone to commit suicide, you commit a serious crime. There’s no
doubt that helping someone go to Switzerland to commit suicide would count as assisting. However
under s2(4) of the act, the consent of the DPP is required for a prosecution. The argument for mrs
purdee was that the s2 offence of assisting suicide constitutes an interference with her rights under
art8 of the convention to respect for her private life. Included in that notion of your right to a private
life is the idea that someone should have a right to decide when they wish to die. That gets upheld
by the HL in the Purdy case. So that was the first stage of the argument and the hl accepted it.

Second stage was to argue that interference with that right was not in accordance with law. (It is a
right that can be restricted in accordance with law) but this s2 interference was not in accordance in
law because it is unclear in what circumstances someone would be prosecuted for assisting suicide.
She suggested that this requirement of certainty of law should be extended to a consent to
prosecution in these circumstances. Reasonable certainty of law required therefore the Dpp to make
clearer the criteria he’d rely on in deciding whether to prosecute.
This argument succeeded. HL held the requirement of certainty of law should extend to prosecution
of attempted suicide and therefore they directed the DPP to come up with a more detailed policy
setting out the factors the director would take into account when deciding to prosecute for assisted
suicide.

The ruling is narrow as its only for assisted suicide but nonetheless, its important and ground-
breaking.

The doctrine of positive obligations

A v UK (1998) 27 EHRR 611

The case involved the CL defence of reasonable chastisement of children which holds parents can
use reasonable force to chastise wrongdoing. Here, a father had inflicted corporal punishment on a
child sufficient to cause some quite severe bruising. He had been prosecuted for assault occasioning
actual bodily harm and had been acquitted at trial, the jury presumably thinking this was reasonable
chastisement or at least weren’t persuaded beyond reasonable doubt that it wasn’t.

It went to the ECtHR who held this CL defence of reasonable chastisement was too broad and too
vague to give effect to the child’s right under art 3 which gives you the rights among other things to
protection from inhuman or degrading treatment. The court though in a v uk in allowing a parent to
inflict punishment to the extent of causing actual physical harm was a violation of art 3 and this CL
defence insofar as it allowed that to happen was therefore too broad and too vague. Governments
response was to pass s58 of the children’s act 2004 which has cut back or basically abolished the CL
defence and replaced it with a rule that there is no defence to causing a child actual bodily harm.
(there is an on-going debate about whether smacking kids in any circumstances should be
permitted.)

Osman v UK (1998) 29 EHRR 245

ECtHR held that the right to life under art 2 may require a state to take preventive operational
measures if there’s a real risk to it from an identified individual.

Case involved someone who was being stalked by a person who was homicidal and who had made
threats against their life and did indeed eventually kill someone. Held that the UK was in violation of
art 2 because the police operation had been conducted with insufficient care to prevent this danger
to life from materialising.

Rogers – Applying the Doctrine of Positive Obligations in the European Convention on Human
Rights to domestic substantive criminal law in domestic proceedings - [2003] Crim LR 690

Buxton L.J. is right to adopt a minimalist stance towards the implications of the HRA foR.
victims in criminal proceedings. However, this is not for the reasons that he gives.82 When
broken down into its separate elements, applying the positive obligations doctrine may
require more from the prosecutor than we think can reasonably be expected. First, he must
show that the typical perpetrator of the type of crime in question could (assuming good faith)
be deterred by the prospect of criminal sanctions. Even then, he should still not succeed if the
defendant can show that the rate of offending in England is no higher than is average
elsewhere, for then the state would not presently be failing in its duty to generally deter; and
he would need a separate set of statistics, those concerning the conviction rate of the type of
crime in question, in order to persuade a judge that the state should remedy its failings by
looking at the criminal law itself. Finally, his proposed change to the law might fall foul of
Art.7 of the ECHR. It is not difficult to see that most cases will break down along the way,83
and that at the very least there will be arguments about what constitutes the “type of crime” in
question (which may occur in an argument over which statistics should be regarded as the
relevant ones at any given moment). Even though one would expect these issues all to be
raised at a pre-trial hearing, one would expect many a busy judge to regard it as something of
a distraction.

Nonetheless, some changes do remain possible. I have argued here that judges should be
competent to decide questions of evaluative fact where it is thought that there may be a
connection between previous practice to leave the issue to the jury and a low conviction rate.
Moreover, even when a positive obligation argument fails, some good may come from its
having been made at all. Victims of domestic violence may gain satisfaction from suggesting
(if they can) that rates of these offences are unusually high in the United Kingdom whilst our
conviction rate remains low. It has taken pressure groups a long time to persuade the
government of the merits for legislative change to the definition of rape; other victims, say of
domestic violence, may gain quicker satisfaction if they can persuade a judge that the
doctrine of positive obligations requires a change in domestic law. The judgment would be a
useful campaigning tool, even if Art.7 of the ECHR restrains the judge from *Crim. L.R. 708
effecting any substantive change himself. Further educational benefits may accrue as a side
effect. Few criminal lawyers (as opposed to theorists or criminologists) give serious thought
to whether certain types of crimes, such as those committed under duress, can be effectively
deterred, because the issue lacks legal relevance, but this may change if positive obligations
arguments are made more frequently. The overall message, however is indeed that these are
the most likely benefits to be realised from raising the arguments discussed in this article.
Codification remains the most suitable way to deliver justice for victims. The legislature, that
can change any area of the law (not just that concerning crimes which can be deterred), may
reverse the burden of proof, may make some changes to substantive criminal law simply
because it considers some defendants to be deserving of punishment, and which is free to
make even radical changes because it is declaring law for the future, can do so much which a
trial judge cannot do by applying the doctrine of positive obligations.

The margin of appreciation

This is a reference to the area of discretion which member states have in relation to deciding what
conduct to criminalise. It’s to do with the level of review with which the ECtHR will adopt if a
member state’s criminal law is being challenged. Strasbourg adopts a general principle of
proportionality in judging the validity of (restrictions?) on convention rights. The court has indicated
in applying that principle it will pay some attention to national culture and values and basically
recognise that national authorities are the best judge of public interest in that particularly MS.

Laskey v UK (1997) 24 EHRR 39

This was an application by a number of the defendants in R v Brown. They challenged the majority
ruling that consent was no defence to harm. The response of the ECtHR was to say that it’s basically
a judgement call on the part of the MS as to how far there should be a defence of consent to causing
injury and they said that in respect to that, we give a generous margin of appreciation meaning
that’s quite a bit of discretion for the MS in question to judge how consent should be a defence.

(end of criminal law and hr)

Lecture 2: (a) Criminal responsibility (October 15th.)

Responsibility

Responsibility is a key concept in talking about criminal liability. It’s been much discussed by criminal
law theorists over many years. There’s a reference on the hand-out to some valuable contributions
to the responsibility debate.

When we talk about responsibility in the formal sense, we’re talking about the conditions of criminal
liability with regards to state punishment

These conditions are generally divided under 3 headings.

- Prohibited act (actus reus of the offence)

o Act made criminal by particular statute or rule of claw
- Guilty mind (mens rea)
o Prohibited act must’ve been done with a guilty mind
o Has to be shown someone intended to cause a particular harm or was reckless in
doing so
- Absence of justification or excuse
o Absence of any defence (duress, insanity etc...)

The concept of responsibility has 2 important functions which are linked. They typically link with the
notion of punishment

- It acts as a limit on how far states can distribute punishment. The idea is that you can’t
punish anyone unless u can show they are criminally responsible. Rules out any kind of
collective punishment. It may take place in certain social institutions like schools but it’s not
known to criminal law cause of the doctrine of the notion of responsibility.
- Secondly and related to the first point is the idea that responsibility provides what Hart has
called a moral license to punishment. This is the idea that responsibility is not only necessary
for punishment but that it’s also in one sense a sufficient justification for punishment given
that punishment is something unpleasant the state imposes on tis citizens the state needs a
justification for doing that and the justification is that the person is criminally responsible.

A further point is that the notion of responsibility rests on a very important philosophical principle
namely, that human beings have free will. The doctrine of responsibility assumes that people have
free will in that they can choose whether or not to engage in particular forms of conduct. We can all
choose whether or not to steal, kill, rape etc... this is never demonstrated, it’s just taken as a given
that people can do this. If science could ever prove that all our actions are outside our control...
that’d be a problem for criminal law.
That then leads to the point that criminal law treats responsible subjects as moral agents. So we’ve
got free will, we can choose whether to commit crimes, thus if we choose to do so we can fairly be
blamed for doing so.

So underlying this notion of responsibility is this notion of moral blameworthiness and that links with
the idea that there is a political value against states which subscribe to political democracy in saying
individuals have rights to autonomy and liberty. And that those rights to autonomy and liberty
should only be interfered with by the state with adequate justification and that adequate
justification is in general provided by someone’s choice to commit an offence which can fairly be
blamed. The argument is that if someone is responsible and they can fairly be blamed, that provides
justification for interfering with these political values. (of autonomy and liberty)

We can then ask ‘on what basis can one fairly be blamed for choosing their conduct?’

We need to question the elements in this notion of choice and this is an on-going debate for criminal
law theorists.

One theory is one which has sometimes been called orthodox subjectivism.

This is a theory associated particularly with 2 of the scholars of the second half of the 20 th century;
Glanville Williams and Sir John smith. The theory is that criminal liability should be determined
according to subjectivist principles and that this would produce an acceptable if you like moral basis
for the use of punishment and will keep the criminal law within fairly narrow bounds.

It basically argues that we should focus on whether a person’s conduct was voluntary and informed.
I.e. D should have either intended (eg to cause that harm ) or at least realise that he might have
cause the harm and in that sense been reckless

The argument goes that it’s unfair to blame and punish someone for harm they did not intend to
cause (the harm) and did not realise they might cause it. A characteristic of orthodox subjectivism is
that intention and recklessness should be linked to the cause of harm. It’s what they mean by the
notion of ‘voluntary and informed’ conduct (intention or recklessness)

It follows on this view, you don’t start making enquires as to the defendants attitude and character
and also therefore, that this is taking a narrow timeframe.

We just looking at the point in time of the act and asking what the defendant intended or knew at
that stage

A further feature of this approach, is that you take the facts as D believed them to be in judging his
state of mind. So if D makes a mistake of fact; E.g. believes he was being attacked when he wasn’t,
you’d judge the use of self-defence as it appeared to the defendant and not as it were.

So the significance of the subjective approach is that you’re looking at D’s act at the time; what he
knew, and thus what he intends or realised would happen.

So the orthodox subjectivist says if these conditions are satisfied, D is sufficiently responsible and
blame and punishment can be imposed.
Challenges to Orthodox Subjectivism

Constructive liability

One of the challenges sometimes comes in the form of what is known as constructive liability.

This is concerned with one of the consequential principles adopted by the orthodox subjectivist
which is basically that actus rea and mens rea ought to coincide at some point as a matter of
principle.

Take the crime of murder. The prohibited act here is unlawful killing. An OS view of murder would
say it needs to be voluntary, informed therefore the law of murder ought to require either an
intention to kill or indeed a realisation that your act might kill someone. In that way, the mens rea
would correspond with the actus reus.

The actual law of murder doesn’t follow these principles in the way described. It does require D to
have intention but, an intention to cause serious injury is sufficient mens rea for murder.

But there’s another school of thought which says that we can fairly construct liability for unforeseen
consequences on the basis that you intended to do some harm to someone. Sometimes theorists
who take this line talk about crossing a certain moral threshold. So in that sense, liability for causing
that particular serious harm is constructed on your basis to cause a lesser harm. As you will see that
in fact, constructive liability is the general principle that operates in a lot of these offences (homidice
and injury) and not orthodox subjectivism.

Objective liability

The second challenge comes in the notion of objective liability. This is really concerned with the idea
that sometimes people who don’t realise the consequences of their actions are just as blameworthy
as people who do. In other words you might be seriously at fault for failing to think about the
consequences of your action. We’re familiar with the notion of negligence as a kind of fault.

There is an argument that some forms of criminal liability can be based on negligence. A failure to
think about consequences and adjust conduct accordingly. Leading example of this is in the case of
manslaughter which can happen when D kills in the case of grossly negligent conduct. Doesn’t
require any intent to cause harm.

And this is based on objective liability and the idea of holding someone responsible for what
reasonable people would have done.

Lecture 2: (b) punishment

DEFINITION

There is no general agreement among the writers, but the following definition captures the essential
elements of punishment:

a legal sanction inflicted by the State following conviction of a crime, which is usually regarded as
unpleasant, and which is intended to be experienced unpleasantly by the offender
THEORIES OF PUNISHMENT

It’s fairly well known that there a number of theories of punishment and it is convention to divide
them into forward looking and backward looking theories.

Forward looking sometimes called reductive theories; the aim is to reduce volume of crime in the
future:

- Deterrence
- Incapacitation
- Rehabilitation

Backward looking theories are basically working on the idea that if someone commits a crime then
they must suffer the penalty of punishment because this is morally right. This view is thus not
particularly concerned with the reductive element:

- Retribution (just desserts)

- Denunciation

Deterrence

Deterrence works on the idea of basically punishment as a threat and deterrence comes in more
than one form.

- General deterrence is the idea that punishment or the prospect of it will generally deter
people from committing crime.
- Specific deterrence is targeted at the particular D being punished and the idea is the
experience of being punished will specifically deter that person from reoffending.
- Another version of deterrence theory argues that even if people are not consciously put off
by the prospect of punishment, subconsciously they’ll absorb the idea that punishment for
crime is to be avoided.

As far as effectiveness goes however, the evidence is at best equivocal and a lot depends on the type
of crime you’re talking about and the type of sanction being imposed.

E.g. when breathalyser law was first brought about in the 60s accompanied by the loss of your
license if you were caught drink driving, statistics showed an immediate drop in drink driving and a
subsequent drop in number of casualties in relation to the number of cars on the road. So it did
appear there was a significant effect reinforced by people who were caught being publicised.

On the other end, if you think about whether the death penalty for a murder is a deterrent, statistics
are vague and it doesn’t seem to have changed before and after the abolition of the death penalty in
England in 1965.

There are 2 fairly obvious points to be made about why deterrence is a fairly uncertain way to
reduce crime

1. People’s perceptions of being caught; (I.e. the risk of detection and prosecution) are
probably far more important than the likely punishment
 a. If you think the risk of detection is relatively low then the prospect of a heavy
penalty may not be a serious factor in your decision whether to commit a crime or
not.
2. Deterrence presupposes that we are dealing with someone who is rational, self-interested,
and thinks about the consequences of their actions
a. In the real world, a lot of crime is impulsive and committed on the spur of the
moment, it may be prompted by strong overwhelming emotions, or it may be the
product of some kind of compulsion like drug addiction where addicts commit crime
to fund addiction and give no thought to consequences
b. So there’s going to be a large group for whom the notion of ‘rational deterrence’ is
simply going to be meaningless.

Incapacitation

This is idea that if you lock up dangerous people, you stop them from committing crime. Clearly this
cannot apply to a great many of D’s who don’t get prison sentences. This is really an argument that is
targeted to a relatively small group of D’s who are identified as being extremely dangerous and from
whom society must be protected; typically people like rapists, paedophiles, psychopaths etc...

Of course you can’t lock everyone up forever though so a great many offenders will only have
relatively short terms of imprisonment on by necessity, this is one problem with it.

2 further problems that it could provide a general justification for punishment

1. Problem of replacements
a. If for example society decides to take a tough line w/ drug dealers and gives them all
life sentences, the chances are for every dealer you punish this way, there’ll be at
least one replacement dealer as the demand for drugs is so large, people are going
to be tempted into it the whole time. So you haven’t really solved the problem
2. One aversion of the theory argues that what we should do is try and identify those offenders
who are particularly dangerous and give them extended sentences of imprisonment
a. One can see the attraction if you’re dealing with offences where offenders are
thought to present a particular threat to a particular group of vulnerable people
(paedophiles)
b. But there is a question of how you can predict which Ds are more likely to reoffend if
merely given the normal sentence
c. So there’s a good deal of scepticism about accurate predictions of dangerousness
d. There is also the problem of the ‘false positive’; means you wrongly identify
someone as dangerous and you end up locking someone up for an extended period
of time where they’re not likely to reoffend.

Rehabilitation

Rehabilitation is the idea that the justification for punishment is the opportunity it provides for
criminals to reform and be reformed. This is a focus as it were on the positive benefits of
punishment in terms of the effects on defendants themselves. It was particularly popular in the 50s
and 60s which was a phase of optimism in penal policy. It’s attractive because the idea that someone
can be reformed is quite a positive way of thinking.

But in the 70s there was a good deal of scepticism as to whether it worked. Figures for reoffending
became increasingly less encouraging. So it led to a virtual abandonment of rehabilitation as an ideal
in the late 70s and the 80s and this led to the dominance of backward-looking theories during that
period.

Beyond the apparently discouraging statistics which suggested that rehabilitation didn’t work for the
bulk of offenders, some also raised the question of whether it was unfair because not all offenders
as it were could be selected as suitable people for rehabilitation and this raised the question of
whether the disparity could be ethically justified.

As the name suggests, rehabilitation would typically involve some special regime; perhaps entailing
efforts to reintegrate the offender into society and the link and it wouldn’t necessarily entail putting
the offender in prison. If others who committed the same crime were locked up cause they weren’t
seen as suitable candidates for rehabilitation it is clear why the question arises. And indeed, this is
undoubtedly still a problem with rehabilitative approaches.

In recent years, there was been a move back to thinking more positively about it as there is some
evidence now to show that treatment targeted specifically at those who were suffering from drug
and alcohol abuse, some evidence his can be successful. Given that quite a lot of crime is associated
with drug and alcohol abuse, that’s quite encouraging.

A further problem however is that these treatment programs are expensive.

Retribution

‘Just desserts’ is the main modern form of retribution and is the idea that the offender who commits
a crime justly deserves punishment and the punishment is the price you pay for committing the
crime. So you’re receiving your ‘just desserts’.

An important part of JD theory is the notion of proportionality. What proportionality signifies in this
context is that the penalty imposed should match the seriousness of the offence. So we get the idea
of a kind of ladder/tariff of crimes and punishment. The idea is that you can grade offences in
ascending orders of seriousness and grade punishments accordingly.

One important consequence is that on this approach, you might not give a punishment which is in
excess of that which is normally given for a punishment of that seriousness. I.e. you can’t start giving
deterrent sentences if they exceed what is normally given for that crime. So that’s a limitation of the
proportionality principle.

The other key element of proportionality is that principle that all offenders who commit that crime
or type of crime should be given the same punishment. We try and avoid disparity of sentencing.

Clearly creates some tension with rehabilitation as there, we want to individualise the sentence with
the hopes of rehabilitating the offender. This question of how much scope there should be for
individualisation where it creates disparity is yet unanswered and has led to much debate.
One other problem with just deserts and also denunciation is that this notion of seriousness of crime
is vulnerable to what you might call ‘penal populism’. This is the notion that public opinion about
seriousness of particular types of crime can be influential in determining types of crime. Headlines in
papers about judges being too soft etc...

Judges are not immune from the force of public opinion. If you look at this history over the last 15
years, u do see a gradual raise in sentences for certain types of crime. There’s no doubt that
sentencing for certain types of crime has gotten more severe. Not to say it isn’t justified. E.g. in rape
it definitely is. The result is you get a soaring prison population.

English prison population is at an all-time high, more than 80k in jail. If you look across western
Europe, England has the 2nd highest rate of imprisonment per populace (behind Portugal) and some
(France, Germany, Sweden etc...) imprison a significantly smaller percentage of their population yet
their patters of criminality are not that different.

This is a tendency increased with JD approach which is not concerned with reducing crimes
committed in the future.

Denunciation

Denunciation is the idea that the punishment represents community condemnation of the offender
and the offence. Important in reaffirming the values violated in the commission of the crime.