Abstract
Taking as its starting point Miri Gur-Arye’s critical discussion of a legal duty to report crime, this paper sketches an idealising conception of a democratic republic whose citizens could be expected to recognise a civic responsibility to report crime, in order to assist the enterprise of a criminal law that is their common law. After explaining why they should recognise such a responsibility, what its scope should be, and how it should be exercised, and noting that that civic responsibility must include a responsibility to report one’s own crimes; it discusses whether that civic responsibility could ground at least a limited legal duty to report certain types of crime. It then turns to the question of whether a civic responsibility to assist the criminal law’s enterprise of bringing wrongdoers to account could include a responsibility to arrest suspected or known offenders if the police cannot or will not do so—a responsibility to make a citizen’s arrest, and the legal power to discharge that responsibility: how far should citizens feel entitled, or duty-bound, thus to ‘take the law into their own hands’?
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Notes
Miriam Gur-Arye, ‘A Failure to Prevent Crime: Should it be Criminal?’, Criminal Justice Ethics 20 (2001): pp. 3–30 (hereafter ‘Failure to Prevent’); and ‘Human Dignity of “Offenders”: A Limitation on Substantive Criminal Law’, Criminal Law and Philosophy 6 (2012): pp. 187–205 (hereafter ‘Human Dignity’), at pp. 197–201.
‘Failure to Prevent’, p. 4.
‘Failure to Prevent’, p. 6.
‘Failure to Prevent’, p. 6; ‘Human Dignity’, p. 200.
‘Human Dignity’, pp. 199–200.
RonaldM Dworkin, A Matter of Principle (New York: Oxford University Press, 1996), p. 190.
For more detailed discussion, see Antony Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018), esp. chs 4–5.
In our existing world, states are often the powerful rulers of citizens who are effectively their subjects; but ours is a normative account.
See Gerald Postema, Bentham and the Common Law Tradition (Oxford: Oxford University Press, 1986), chs 1–2; Roger Cotterrell, Law’s Community (Oxford: Oxford University Press, 1995), ch. 11.
Herbert L A Hart, The Concept of Law (2nd edn; Oxford: Oxford University Press, 1994), chs 5–6.
See at n. 5 above.
See Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997), pp. 185–200.
See further Duff, n. 7 above, chs 1, 5; Antony Duff and Sandra Marshall, ‘Civic Punishment’, in A Dzur et al. (eds), Democratic Theory and Mass Incarceration (Oxford: Oxford University Press, 2016), pp. 33–59.
Though the distinction between creation and administration is far from sharp, since the ways in which the law is administered can modify what the law in substance is. Compare Nicola Lacey, ‘Historicising Criminalisation: Conceptual and Empirical Issues’, Modern Law Review72 (2009): pp. 936–60, at pp. 942–7, on ‘substantive’ as against ‘formal’ criminalisation; also Albert Dzur, Punishment, Participatory Democracy, and the Jury(Oxford: Oxford University Press, 2012), on the role that juries might play in effectively remaking the law.
See at n. 3 above.
We could also say that in discharging this responsibility we show solidarity with our fellow citizens: solidarity not in ‘the war against crime’, as Gur-Arye puts it (‘Failure to Prevent’, p. 4), since a war against crime too easily becomes a war against criminals, who come to be treated not as fellow citizens but as enemies; but solidarity in supporting this important aspect of our shared civic enterprise.
According to the Metropolitan Police, ‘[e]veryone has a civic duty to help police officers prevent crime and catch offenders’: see https://www.met.police.uk/advice/advice-and-information/st-s/stop-and-search/your-rights-and-responsibilities/.
See Criminal Damage Act 1971, s. 1; or perhaps I only suspect that he was reckless.
See David Ormerod and Karl Laird, Smith and Hogan’s Criminal Law (16th edn; Oxford: Oxford University Press, 2021), p. 691; Public Order Act 1986, s. 3.
See Sexual Offences Act 2003, ss 9, 13.
See Code for Crown Prosecutors (https://www.cps.gov.uk/publication/code-crown-prosecutors/) s. 4.
See Model Penal Code § 2.12; Antony Duff, ‘“De Minimis” and the Structure of the Criminal Trial’, Law and Philosophy 42 (2023): pp. 57–86.
As the government made explicit in the debate on the Act: Hansard vol. 409, 15 July 2003, col. 248.
[1994] 1 AC 212; thanks to a reviewer for urging us to discuss an example of this kind.
Compare Gur-Arye, ‘Failure to Prevent’, p. 11.
For examples of how professions deal with this issue, see e.g. General Medical Council, Confidentiality: Good Practice in Handling Patient Information (London: GMC, 2017); Law Society, Legal Professional Privilege (https://www.lawsociety.org.uk/topics/client-care/legal-professional-privilege).
Of interest here is the Roman Catholic church’s reactions to legislation requiring priests to report sexual abuse of which they learn in the confessional: see e.g. Philip Pullella, ‘Vatican Defends Confessional Secret as Sexual Abuse Crisis Stings’, https://www.reuters.com/article/us-vatican-confession-abuse-idUSKCN1TW2AC.
We must distinguish dilemmas, when we face a conflict between values each of which demands our allegiance, from temptations, when we are motivated (perhaps for reputable reasons) not to do what we know to be our duty.
See Plato, Gorgias.
See Duff, n. 7 above, ch. 7.
18 US Code § 4, ‘Misprision of Felony’; this used to be an offence in England, but was abolished by Criminal Law Act 1967, s. 1 (the offence is not wholly general; it covers only failing to report ‘felonies’, not lesser kinds of offence). For other examples, see Gur-Arye, ‘Failure to Prevent’; Andrew Ashworth, ‘Positive Duties, Regulation and the Criminal Sanction’, Law Quarterly Review 133 (2017): pp. 606–30.
See e.g., in England, Terrorism Act 2000, s. 38B; also Israel’s Penal Law 5737–1977, s. 95.
See e.g. Report of the Independent Inquiry into Child Sexual Abuse (HC 720; London: Stationery Office, 2022), pp. 216–33, on proposals to make it a criminal offence for ‘mandated reporters’ to fail to report child sex abuse.
See Gur-Arye, ‘Failure to Prevent’, pp. 8–9.
See Zachary Kaufman, ‘Bad Samaritan Laws’, http://www.zacharykaufman.com/bad-samaritan-laws.
Gur-Arye, ‘Human Dignity’, pp. 199–200; see at n. 5 above. Compare Youngjae Lee, ‘The State’s Right to Evidence and Duties of Citizenship’, Philosophical Issues 31 (2021): pp. 210–26, at p. 224.
The old distinction between ‘felonies’ and ‘misdemeanours’ (n. 32 above), or contemporary distinctions between ‘indictable’ and ‘non-indictable’ offences, or between offences that can and those that cannot be punished by imprisonment are unhelpful here, since they would stretch the realm of legally mandatory reporting too far.
See at nn. 33–4 above.
Thanks to Gniewomir Wycichowski-Kuchta for guidance on Polish criminal law.
For an example of a ‘good reason’ defence, see Terrorism Act 2000s. 38B(4) (a ‘reasonable excuse’ defence, interpreted in the light of s. 118).
Those who think that punishment is essential to the criminal law (see e.g. Douglas N Husak, Overcriminalization: The Limits of the Criminal Law (Oxford: Oxford University Press, 2007), p. 78; Michael S Moore, Placing Blame: A Theory of Criminal Law (Oxford University Press, 1997), ch. 1) might take a more instrumental view of the criminal process, as serving primarily to identify those who are to be punished, but on our account it has an intrinsic significance as a process of calling to account; see Duff, n. 7 above, pp. 15, 36–9.
See e.g. the powers of arrest specified in Part III of the English Police and Criminal Evidence Act 1984, as expanded by s. 110 of the Serious Organised Crime and Police Act 2005.
As we know all too well, from a string of tragic cases, that supposition is sometimes mistaken, and that hope is sometimes frustrated. This would still be true, though much less often, in the kind of decent society that we are imagining: but we can still say that, in general, police officers are better equipped than lay citizens both to decide whether and whom to arrest and to carry the arrest out.
Police and Criminal Evidence Act 1984, s. 24A. Mental health legislation also provides for the detention of those whose mental disorders endanger themselves or others; but we focus here on arrests for (suspected) crimes.
Malcolm Thorburn, ‘Justification, Powers and Authority’, Yale Law Journal 117 (2008): pp. 1070–1130, at pp. 1118, 1108 (Thorburn’s main focus in this paper is on self-defence as a justification).
On ‘citizens in uniform’ and ‘officials in plain clothes’, see John Gardner, ‘Criminals in Uniform’, in R A Duff et al. (eds), The Constitution of the Criminal Law (Oxford: Oxford University Press, 2013): pp. 97–118 (see Albert V Dicey, An Introduction to the Study of the Law of the Constitution (6th edn; London: Macmillan, 1902), p. 100).
https://www.askthe.police.uk/faq/?id=643d6d10-2a4d-ec11-8f8e-000d3ad556e5; see at n. 17 above.
They can go wrong even when the arrester is motivated by genuine civic concern, but jumps to wrong conclusions about the person he tries to arrest, or uses force that is excessive or misguided. They can also, of course, go wrong when citizens seek or claim to make arrests from racist or otherwise improper motives: a recent well-known case was the murder of Ahmaud Arbery in Georgia—see https://www.justice.gov/opa/pr/federal-judge-sentences-three-men-convicted-racially-motivated-hate-crimes-connection-killing.
There are of course striking similarities with, but also striking differences from, the case of George Floyd, who died when a police officer who was arresting him for allegedly passing a counterfeit $20 bill knelt on his back for nine minutes, despite his protests that he could not breathe.
See at n. 47 above.
But contrast the classical German doctrine that it is permissible to use even fatal force to prevent a minor theft: on which see Uwe Steinhoff, ‘Proportionality in Self-Defense’,Journal of Ethics21 (2017): pp. 263–89.
The problem of defining ‘vigilantism’ arises here (see e.g. Les Johnston, ‘What is Vigilantism?’,British Journal of Criminology36 (1996): pp. 220–36). For useful examples, see Paul Robinson and Sarah Robinson, Shadow Vigilantes (Buffalo: Prometheus, 2018).
The activities of ‘paedophile hunters’, and other kinds of ‘digilantism’, are of interest here: see e.g. Tom Sorell, ‘Scambaiting on the Spectrum of Digilantism’, Criminal Justice Ethics 38 (2019): pp. 153–75; Katerina Hadjimatheou, ‘Citizen-led Digital Policing and Democratic Norms: The Case of Self-styled Paedophile Hunters’, Criminology and Criminal Justice 21 (2021): pp. 547–65.
Acknowledgements
Grateful thanks are due to Re’em Segev and Alon Harel, who organised the workshop at which an early draft of this paper was presented; to the other participants in that workshop, and to participants in seminars in Krakow and Warsaw, for helpful comments; and especially to Miri Gur-Arye for the illuminating and stimulating work that provoked this paper.
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Duff, R.A., Marshall, S.E. Reporting Crimes and Arresting Criminals: Citizens’ Rights and Responsibilities Under Their Criminal Law. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09701-8
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DOI: https://doi.org/10.1007/s11572-023-09701-8