Sunday, 4 October 2020

Lecture 1

Recognising crime: distinctive procedures

- Two kinds of legal procedure -criminal and civil (though the court has both kinds
of jurisdiction):

- “A crime then becomes an act that is capable of being followed by criminal

proceedings, having one of the types of outcome (punishment etc.) known to
follow these proceedings.” (Glanville Williams "The De nition of
Crime" (1955) 8 C.L.P. 107, 123.)

- Same act (eg assault) can be both a civil wrong and a crime. However ‘A criminal
case is an action between the State (as prosecutor) and a private party (or
defendant). The victim of the o ence, where relevant, may be simply a witness for
the court. That is why, unlike with civil law, the victim is not on our list of main
actors’. (Essentials 1.1.7.1.)

- In a civil case the State takes on the responsibility of rectifying this particular
wrong.

Crimes as ‘Public’ Wrongs

- The idea that the wrong goes beyond the matter of compensation.

- ‘[B]esides the injury done to individuals, [crimes] strike at the very being of
society, which cannot possible subsist, where actions of [that] sort are su ered to
escape with impunity…’ Blackstone 1765-9 Book IV, quoted by Du , Answering
For Crime (2009) at 52. Du goes on:

- ‘Victimising crimes such as murder, rape, wounding and fraud … are wrongs
because of what they do to their direct victims, and they are crimes or public
wrongs, not because of some further injury that they do to ‘the public’ but
because they are wrongs that properly concern ‘the public’, ie wrongs that
properly concern us all as citizens.’

- The notion of a public wrong lies at the heart of the criminal process and justi es
the intervention of the State.

Criminalisation and Punishment

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- ‘“Three salient functions of criminal law emerge ... The rst might be called
criminalisation: the law sets out for citizens those things which must not be
done. The second thing the law does is convict persons who are proved to have
transgressed its prohibitions. Finally, it may punish those whom it convicts; and
more generally, the criminal law o ers the prospect of punishment to reinforce its
function of criminalisation.” Simester and Sullivan’s Criminal Law, Theory and
Doctrine (7th ed) § 1.2.

Justifying the Criminal Sanction

- ‘… the decision whether or not to criminalise should be in uenced by the

seriousness of the wrong. In principle the criminal law (with all its procedures and
consequences) should not be used against non-serious wrongs …criminalisation
implies a labelling and a liability to punishment that should not lightly be
imposed.’ (Ashworth “Is the Criminal Law a Lost Cause?” [2000] 116 LQR 224 at
226).

- The government should ask:

- Is the behaviour su ciently serious to merit the criminal sanction?

- Could the mischief be dealt with under existing legislation/using other

remedies?

- Is the crime enforceable in practice?

- Can the conduct can be clearly proscribed by tightly drawn legislation?

- Is the penalty commensurate with the seriousness of the o ence?

- Ashworth attributes these five criteria to a former Attorney-General, Lord

Williams, in answer to a Parliamentary question in 1999.

- However:

- ‘The plain fact is that governments often take the view that the creation of
a new crime sends out a symbolic message that, in blunt terms, may ‘get
them off a political hook’ – even though the new crime fails to satisfy Lord
Williams’ criteria on one or more grounds.’ (Ashworth, “Is the Criminal
Law a Lost Cause?” at 253)

- R v Brown

Regulatory Offences and ‘Real’ Crimes

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- “… there are many offences for which criminal liability is merely imposed by
Parliament as a practical means of regulating an activity, without implying the
element of social condemnation which is characteristic of the major or traditional
crimes.” (Ashworth & Horder, Principles of Criminal Law 7th ed at p.2)

- Often promulgated via secondary legislation (so little debate/regulation). Criminal

law is imposed as a sanction to impose punishments on those who break the
regulations.

- Aimed at avoiding rather than punishing actual harm (eg Health & Safety
legislation)

- But may still attract ‘real’ penalties including imprisonment

- Putting regulatory offences together with real crimes such as murder and rape is
unprincipled

- Clear divide between these offences through a Criminal Code

- ‘Non-criminal ‘offences’ should be specified as regulatory or administrative

to ensure fair labelling … . It would obviously be difficult to create a code of
administrative offences quickly, but it could be done if a Criminal Code itself
is adopted or, failing that, by placing new minor offences in an administrative
code and incorporating such existing offences in the code over time.’ Kiron
Reid, “Strict Liability: Some Principles for Parliament” (2008) 29 Statute Law
Review 173, 194.

- Regulatory offences continue to make up the bulk of the 8,000+ different criminal
offences on the statute book (not counting secondary legislation)

- Our studies are concerned with the principles applicable to ‘real’ rather than
regulatory offences, though we will encounter some of the latter

- Regulatory offences are often drafted to impose ‘strict’ liability (the prosecutor
does not have to prove fault) and this may encourage the use of similar drafting in
relation to ‘real’ offences – we should therefore acknowledge that they serve
different functions.