Tuesday, 9 July 2013

What's the point of criminal law?

...is a question I'm sure many law students ask themselves.

 However, I want to pose it in the form - when should the State sanction certain behaviour? What principles should be applied? What should the criminalisation of behaviour seek to achieve?

As a general principle the State will only punish people when they have done a prohibited act (in legal language there is an "Actus Reus" [a wrongful act]) and they have the appropriate "Mens Rea" [guilty mind]. But - and here are some issues to reflect upon -

* are there any circumstances in which we should 'punish' when no act has been done?  Should we detain or even punish people who are very likely to commit a crime but have not yet done so? The issue is raised in the film "Minority Report". It also arises when the State seeks to protect its citizens by locking up those who may be trained for terrorism. What should happen when developments in technology permit actions which are outrageous but no legislation has yet been passed? In English Law there has to be "an act which is more than merely preparatory to the commission of the offence" before a person can be convicted of an Attempted Crime - but should we punish when a person decides to do something, but is thwarted in the planning stage?

* What actions should be the subject of criminal law? John Stuart Mill put forward the "harm principle" - "The only purpose for which power can be rightly exercised over any member of a civilized community against his will, is to prevent harm to others.". But should we attempt to deter self-harm by criminalising certain behaviour? (drug use? smoking? over-eating?). I am harmed by a smoker lighting up - I'm allergic to cigarette smoke - and passive smoking can kill too - it is an assault (on my lungs, on my eyes & the ash can settle in my hair) - but should I be able to call the police and get a smoker arrested? As a taxpayer I am harmed by having to pay for health services for people whose illness or injury is self-induced. Older & vulnerable people can be frightened by young, exuberant, noisy people playing near their homes. As a child I played football in the street - when I was a parliamentary candidate I often met people who wanted me to get the police to stop - with the threat of a criminal record - young people doing exactly the same thing. Should being a nuisance attract criminal sanctions (like those cold callers who ring up despite the fact that you have signed up to the Telephone Preference Service?)

* How many "Strict Liability" offences should there be? If I drive above 70 miles per hour on a dual carriageway, the law will still hold me guilty, even if I neither intended to drive above the limit nor was aware that my speedometer is faulty. In what circumstances should there be strict liability?

* If criminalising particular behaviour doesn't deter, should we remove the offence from the statute book?

* Should retribution [harming someone for the harm they have done to another] alone be a justification for punishment?

* Should punishment be related to the amount of money involved, or the injury caused to the victim? This issue is the subject of a current consultation on Fraud - http://www.bbc.co.uk/news/uk-23073410

Questions worth reflecting on?