Coming Clean About the Criminal Law
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- Cite this article as:
- Edwards, J. Criminal Law, Philosophy (2011) 5: 315. doi:10.1007/s11572-010-9111-8
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This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, this paper offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed.
KeywordsCriminalisationTransparencyAnswerabilityCriminal processAntony Duff
Anglo-American criminal law theorists have written many a critical word recently about criminalisation in their respective legal systems. Douglas Husak has argued that too much is now a crime in the United States, and that unjust punishments are being imposed on those whose behaviour should never have been criminalised.1 Victor Tadros has argued that potential offenders have a right to a criminal law which guides their behaviour, a right violated by some offences in English criminal law.2 Others have identified offences which undermine important procedural values: offence-definitions from which the wrong targeted by law-makers has been (partially) written out, undermining the capacity of defendants to contest the allegations made against them.3
In this paper, I put forward a further argument to which little attention has yet been paid, an argument which addresses the transparency of the doctrinal phenomena which give rise to the criticisms just mentioned. My argument is that in English law these phenomena have been concealed from view, and that there are reasons for the state to come clean about their existence. More specifically, I address three doctrinal phenomena of which there is evidence in English law: the quiet extension of the criminal law so as to criminalise conduct which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which does not give grounds for arrest or prosecution, but constitutes a mere condition of the validity thereof.
I argue that the officials and institutions of the state encourage their citizens to believe that each of the three phenomena is no part of English law.4 Thus they give those citizens reason to believe that the scope of the criminal law extends only to well-publicised offences and common-sense criminal wrongs; that (one of) the goal(s) of every criminal offence is to guide potential offenders away from crime; and that the ground for arresting and prosecuting a defendant is always the commission of an offence. In truth, I argue, there are a number of cases in which this picture is false. Those persuaded to believe its truth have been misled about English criminal law.
I further argue that the state should come clean about the phenomena discussed. Drawing on the work of Antony Duff, I argue that the state owes its people answers for the imposition of the criminal law: it owes them an account of what it takes to justify both creating and enforcing any given criminal offence. When the state misleads people about the criminal law’s scope, goals and enforcement, it fails to provide them with the answers they are owed.
The Scope of the Criminal Law
My first topic is the criminal law’s scope. As I use the term, the scope of the criminal law is given by the amount of behaviour which is a criminal offence. It is true that some of this behaviour furnishes one with a defence, and thus, barring evidentiary difficulties, should not result in prosecutions or convictions. But we should not assume that mere criminalisation is therefore unimportant.5 Once behaviour is criminalised, one can no longer engage in that behaviour without worrying about justifying, excusing or otherwise finding a defence for doing so. If one cannot find a legally-recognised defence, one has nothing with which to stave off prosecution if the state decides to prosecute. Even if one can find a defence, one must still be able to prove it to be sure of staving off conviction. Prior to criminalisation, none of this was required. One’s behaviour fell, mercifully, outside the scope of the criminal law.6
My argument here is that the scope of the criminal law has been extended in various respects, with no adequate indication from the state that the extension has taken place.7 Nor is the extension one which leaves ordinary life untouched. Various quotidian acts are now criminal offences, but this has not been adequately publicised to those at risk of offending. Furthermore, the actions of the state encourage the belief that behaviour which is now an offence is no offence at all. They encourage the belief that the criminal law’s scope is narrower than it is in truth.
Consider three criminal offences of relatively recent vintage. Section 58(1) of the Terrorism Act 2000 makes it an offence to possess a document or record containing information likely to be useful to a person preparing an act of terrorism. Section 38B of the 2000 Act makes it an offence to fail to disclose information to the police as soon as reasonably practicable, if one believes the information may be of material assistance in preventing an act of terrorism.8 Section 45 of the Serious Crime Act 2007 makes it an offence to do anything capable of encouraging the commission of an offence, if one believes the offence will be committed and that one’s act will encourage its commission.9
It follows from these three offences that the curious reader who borrows library books about explosives, the tenant who never informs the police of his flatmate’s plan to graffiti anarchist slogans on the town hall, and the neighbour who suggests that the tenant tell no-one, may all have committed an offence. Could they reasonably be expected to know that the scope of the criminal law extends so widely? I think not. You may say that as with any criminal offence, these offences sit on the statute book and are accessible to the public as a result. But so do thousands of others, many regularly amended, contained within diverse pieces of legislation, addressing diverse areas of human life.10 Those with lives to lead away from the law cannot be expected to keep up with all this by scouring the statute book for potentially relevant offences. Something more is required to make the criminal law’s scope reasonably knowable to them.11
You may reply that expert legal advice would allow one to discover the existence of my examples. But if one has no reason to believe that φing is an offence, one does not seek legal advice before one φs. You may further reply that there are obviously wrongful activities, which anyone can be expected to know are criminal offences, and other specialist activities, which anyone can be expected to know will be regulated by the criminal law. So there are. But the examples I have given here are not caught by such a reply.
Notice that all three examples could have been made reasonably knowable to those they make offenders. Most obviously, this could have been achieved by actively bringing their existence and content to the attention of those who might commit them.12 The offences could have been publicised via leaflets posted to homes, via notices in public libraries, via advertisements in newspapers or posted on the internet. The ambit of each could have been clarified thereby, in terminology which potential offenders understand.13 Alas, such publicity never came, leaving curious readers, knowing flatmates and nosey neighbours everywhere with no adequate indication that they may be committing offences. Such people fall within an increasingly esotericpart of English criminal law: a part comprised of liability created on the quiet and known only to the few, which nonetheless brings many within the scope of the criminal law.14
Now the existence of esoteric liability itself creates the appearance that the scope of the criminal law is narrower than it is. It is natural to assume that many of the activities thereby criminalised—hardly obvious wrongs—are not offences at all unless one is given reason to think the contrary. And this assumption is only further encouraged when offences are publicised selectively without the state coming clean about the selectivity. To see the point, think of the recent smoking ban introduced by the Health Act 2006.15 This new offence, which criminalised the daily activities of many, was widely publicised before it came into force. Such publicity naturally encourages the belief that whenever the criminal law expands into unusual terrain, such publicity will attend its expansion. It encourages us to believe, what with the lack of publicity, that much of the behaviour criminalised by my three examples remains outside the scope of the criminal law. Not so.
There is a second way in which we are encouraged to believe in a narrower criminal law: we are encouraged in that belief by state pretensions to observance of the Rule of Law. It is proudly proclaimed by government ministers, and even by legislation itself, that the Rule of Law is a sacrosanct constitutional principle in the United Kingdom.16 We cannot but be encouraged by such rhetoric to believe that the demands of this ideal will, at least in the main, be honoured. Yet even those with only a vague idea of what those demands amount to will appreciate their opposition to little-publicised laws which burden the unsuspecting with the surprise commission of crime.17 If the Rule of Law were being upheld, such offences could not exist. We have already seen that they do. We have seen that the law is of wider scope than the noble rhetoric would have us believe.
I have argued that the state encourages the belief that the reach of the criminal law is narrower than it truly is. It encourages the belief that there is no esoteric criminal liability: that various everyday activities have not been criminalised on the quiet. What this section has shown is that such liability does exist. Borrowing the wrong books, failing to tell on one’s housemates, encouraging such things in the belief they will occur—all may now bring one within the scope of the criminal law. We must have our defences ready when we do such things, and if we lack a defence only the forbearance of officials stands between us and prosecution. The state gives us every reason to think that this is not so: that the criminal law extends only to common-sense crimes and well-publicised offences. This, alas, is nothing more than a masquerade.
The Goals of the Criminal Offence
The second phenomenon to be addressed here concerns what each criminal offence exists to achieve and how it is meant to achieve it. To see the point, ask yourself this: what did the state seek to achieve by criminalising murder and dangerous driving?18 Few would deny that part of the answer is to reduce the behaviour criminalised.19 Murder is an egregious wrong, and by making it a crime to commit that wrong, we aim to produce fewer murders. Dangerous driving risks serious harm, and the point of criminalising it is to produce less such driving and less such serious harm. What is important for present purposes is how these offences are to achieve their goals. They are to do so by eliciting a particular response from those who would otherwise offend. Such people are to respond to criminalisation by avoiding criminalised behaviour. If they do, and all other things are equal, such behaviour will be reduced.
Why respond to crime by avoiding rather than embracing it? The threat of punishment provides one reason, of no little force. Commission of most (if not all) criminal offences renders one liable to criminal punishment, providing an obvious incentive to stay on the right side of the criminal law.20 But as H.L.A. Hart famously insisted, the criminal law does not only seek to elicit the sought-after response via threats.21 There are also various trappings of crime which signal to potential offenders that criminalised behaviour must not be done. For those who wish to stay on the right side of the law, this is an additional reason not to offend: even if one can be sure to avoid detection, committing crime is presented by the criminal law as something one has a duty not to do.22
Many of the trappings I just mentioned are obvious once one considers them. Criminalised behaviour is often declared to be an ‘offence’ by the very legislation which criminalises it.23 Judges speak of what is ‘prohibited’ by the criminal law, and condemn proven offenders as ‘guilty’. Political and media discussion frequently pre-supposes that criminalised conduct is to be avoided.24 And the aforementioned fact that offenders are liable to punishment cannot but further imply that as far as the law is concerned, offenders should not so act. It is true, of course, that the message that crime should be avoided is not explicit in the wording of offences. But we must look beyond this to appreciate the entire message criminalisation sends. The message sent by the trappings of crime is that one ought to avoid the criminalised, and if this is taken on board by potential offenders—if they are guided away from offending—the reductive goals to which the criminal law traditionally aspires will be achieved.
My argument here is that there are criminal offences in respect of which the trappings of crime mislead. Unlike murder and dangerous driving, the goal of such offences is not to elicit a consistent non-offending response, nor to reduce the incidence of all they make a crime. Consider sections 9 and 13 of the Sexual Offences Act 2003. The combined effect of these sections is that it is an offence for a person below the age of 18 to touch a person below the age of 16 if the touching is sexual.25 This is so even though many such acts will be consensual, even though the parties may be well-known to each other, and even though there may be no manipulation or coercion involved. Was the aim really that young people respond to this by making sure they do not offend? Not at all. It was accepted by those who drafted the offence that ‘much sexual activity involving children under the age of consent might be consensual and experimental’.26 It was, and is, accepted that in many such cases it would be wrong for the law to intervene.27 This all implies that the state will frequently be indifferent to the fact that youngsters continue to offend. If youthful experimentation is sometimes thought healthy, it may be hoped that some will continue. The point for present purposes is that this tells us something important about what this offence was created to achieve: it was not created to produce non-offending responses from all who would otherwise commit it.28
Consider also section 8 of the Terrorism Act 2006. Section 8 makes it an offence to attend any place where training is being provided for purposes connected with terrorism, if one believes, or could not have failed to understand, that the training is for those purposes.29 One need not give or receive any training oneself, nor need one assist, encourage or otherwise interact with those party to the training. Indeed, it does not even matter what reasons one had for attending. One may have attended out of curiosity. One may have done so to gather intelligence, or put an end to training one knew was taking place. One may have done so simply because it was one’s job to do the cleaning up. In all such cases, one commits an offence. Were people really supposed to refrain from everything this offence prohibits? There is obvious reason to say no: even those working undercover for the police will offend when they infiltrate groups providing relevant training. Surely the aim was not to bring it about that such work is no longer done. Nor can the goal really have been that owners, employees and users of public spaces of all stripes, disrupt their own lives or neglect their duties when they believe training is taking place on-site. And if this is right, it follows that much of that criminalised was never supposed to cease. The offence simply was not designed to produce a consistent non-offending response.
What then were these offences created to achieve? They were created to facilitate the conviction of a mere sub-set of offenders: those who not only meet the offence-definition but stray into the genuinely wrongful as well.30 Thus the 2002 command paper makes clear that sections 9 and 13 of the 2003 Act were intended to enable the prosecution of manipulators: those whom law-enforcement agents suspect not just of sexual touching but of touching which is also manipulative.31 Section 8 of the 2006 Act is most sensibly interpreted as a tool for the pre-emptive prosecution of conspirators, aiders and abettors: those suspected of plotting acts of terrorism and of being present to further such plots. Because the offence-definitions make no reference to these further wrongs, the prosecutorial burden is lightened: there is no need to produce evidence of them in order to prosecute and convict. And while the attaining of convictions is facilitated in this sub-set of cases, the many others who technically commit these offences can (as far as the state is concerned) simply be left to get on with it.
The key point here is that this shift of goal is concealed by the trappings of crime. Legislation continues to describe the criminalised behaviour as an offence, and anyone who commits it continues to be liable to imprisonment. Courts continue to convict those shown to have offended, and there is no announcement, in the media or otherwise, that the offences’ goals are any different. All of this cannot but send the message that offending behaviour should be avoided: that training sites should be vacated and teenagers cease to experiment. What we have just seen of course is that this message will often mislead: that the true (facilitative) goals of these offences are masked by the trappings of crime.
The Role of Criminal Offences in the Criminal Process
Let us turn to our third topic. To understand the argument here, consider the following questions. Why are individuals arrested, charged, tried and convicted? More precisely: what must be done to provide the state with grounds for taking such steps against one?32
You may say the answer is obvious. Such grounds exist when there is sufficient evidence that a criminal offence was committed, where what is sufficient varies depending on the stage of the criminal process reached. This answer seems so obvious because of the way that process presents itself. When one is told that one is being arrested, one is told it is for committing an offence. One is only ever charged with committing an offence, and one pleads to that offence in court. If one is tried, one’s trial revolves exclusively around whatever offence is at issue: it is this which the prosecution advocate will try to prove; this against which one’s advocate will defend one; this which judge and jury will consider in deciding whether to convict. If conviction does finally befall one, it is the offence one is convicted of. This cannot but imply that at each stage of the criminal process, the conduct which grounds one’s having reached that stage is one’s alleged offending behaviour. Why was one arrested? Why was one charged? Why did the state seek one’s conviction at trial? When it comes to these questions and others like them, the self-presentation is unequivocal: it points us back, only and always, to the commission of the criminal offence.
My argument here is that this self-presentation is, at times, misleading: that there are cases where the conduct which grounds prosecution is left out of the criminal process.33 Criminologists have already noticed that this is an implication of certain strategies of law-enforcement. Officials do sometimes use offence-commission as a pretext for arrests made on other grounds.34 What has not been denied is that in most such cases this is an aberrant use of offences: however common it may become, it is not the use for which those offences were created. My concern here is with cases where offending behaviour itself was never supposed to ground prosecutions: where the real grounds for prosecuting suspects were meant to lie elsewhere, and enforcement grounded by the offending behaviour alone would itself be the aberration.35 It follows that when certain offences do come to be enforced, the grounds for that enforcement will be (at least partially) excluded from the criminal process. Of course, that process will continue to present offending in a grounding role. The change which has taken place is thus concealed from public view.
This may sound to the reader like a remarkable set of claims. But we have already discussed offences which testify to their truth in English law. We have already seen that sections 9 and 13 of the Sexual Offences Act 2003 criminalise all consensual sexual activity between minors. We have already seen the state accept that much of this behaviour is of no concern in itself. If this is right, it was never intended that offenders be prosecuted simply because they offended. It is only when an extra element is present—one entirely excluded from the offence-definition—that the criminal process is to spring into action. It is only when manipulation is thought to have occurred that arrests are to be made, and the other stages of the process to follow.36
The upshot is that when people are arrested pursuant to sections 9 and 13, what grounds their arrest in the eyes of the state is not their offending behaviour. Certainly, that an offence has been committed figures among the conditions of arrest: there must be a reasonable suspicion that the arrested person offended if arrest is to be legally legitimate. As far as the state is concerned however, this suspicion provides no positive reason for officials to arrest anyone. Grounds for arrest only exist when the conduct in question also amounts to the sexual manipulation of a minor. Furthermore, the same point can be made throughout the criminal process. Those suspects who are eventually charged are not charged with manipulative sexual activity. But it is evidence that they were manipulative which grounds their being charged in the first place. Defendants in court do not plead to a charge of manipulation, nor will a case be made to this effect. But the truth is that the state only hauls them into court because of evidence their actions were manipulative.37 If such evidence were lacking, the state would leave them well alone.
The key point here is that the wrongdoing which grounds each step in the criminal process is being excluded from that process. This exclusion cannot but encourage us to think that the excluded conduct is irrelevant, and that the true ground for each suspect’s treatment is the offending behaviour put forward in that role. In fact, the evidence of this behaviour merely helps meet conditions of prosecutorial validity. It is only presented as if it were more than that—as if it were grounds for prosecution too.
Various further examples could be given of the point. It may seem that the state seeks the conviction of defendants because of their presence in a place they know is being used to teach others certain skills, including how one disrupts electronic systems to promote a political cause.38 It may seem that youngsters are to be prosecuted for causing other youngsters to look at sexual images for a sexual thrill.39 This, of course, is exactly how things appear. The defendant is charged with doing these things and argument at trial revolves around them. Alas, this is no more than another masquerade. Those who are to be convicted in the first case are those suspected of participation in a ‘terrorist’ plot. Those who are to be prosecuted in the second are those thought to be preying on the vulnerable for their own gratification. The criminal law masks this truth by presenting the suspicion that a given suspect offended as though it provides grounds for prosecution. As we just saw, the true prosecutorial grounds lie elsewhere.40
Now you may object that my argument proves too much. Is it not true of innumerable offences that the state’s grounds for prosecuting defendants are excluded from the offence-definition? Is this in fact not clearly true of offences which criminalise speeding (the grounds being dangerous driving), or which criminalise the possession of drugs (the grounds being use or supply)? Not so. We should not make the mistake here of assuming that by grounds I mean ultimate grounds. That one drives in excess of the speed limit may well be what grounds one’s arrest, just as long as the view of the state is that each instance of speeding provides justification for arresting the speeder.41 True, the ultimate ground for arresting speeders may be that speeding is generally dangerous. But that is beside the point as far as my argument here is concerned. What matters here is that in the cases I have discussed, the offending behaviour alone is no ground at all for initiating the criminal process. By the state’s own lights it provides no good reason for that process to spring into action.
What follows for our purposes is that the state’s actions are again misleading. The self-presentation of the criminal process suggests that in everycase offending behaviour plays the same grounding role. What we have just seen is that its role is actually different in two different classes of case. In the first, exemplified by the speeding example, offending behaviour does give grounds for prosecution. But in the second, it is merely a validity condition, and provides no positive reason to prosecute.42 If I am right, English law contains both classes of case. And it follows that in parts of that law, pretext is a matter of course. While offending is put forward by the state as giving grounds for prosecution, there are cases where it is actually thought to do nothing of the sort.
In this section I argue that the state should come clean about the developments discussed to this point.43 It should come clean about the scope of the criminal law, by adequately publicising criminal offences so their existence and contents are reasonably knowable to potential offenders. It should come clean about what offences exist to achieve, by stripping the trappings of crime from offences which exist to facilitate, or publicising the fact that those trappings mislead. And it should come clean about its grounds for prosecuting suspects, by bringing those grounds back into each stage of the criminal process. I return to all this below. My primary goal however, is to argue that whatever the mechanics of doing so, the state should come clean. There are various arguments one might make to this conclusion, and I will focus here on just one. This is not to impliedly claim that my argument is the strongest or most important. There may well be strong and important arguments applicable to each phenomenon individually—arguments from the difficulty in planning one’s life if the scope of the criminal law is misrepresented; arguments from the chilling effect of the trappings of crime when innocuous behaviour is criminalised. I will not discuss these here. Instead I will offer an argument which applies to all three developments. I will call this the argument from answerability.44
According to the argument from answerability, those upon whom a system of criminal law is imposed are owed answers for that imposition: an account of that which is taken to justify both the creation and enforcement of any given criminal offence.45 It is important to note that if this argument succeeds, the demands it places on the state are both more modest and more exacting than they may appear. More modest in that the argument only demands an account of the state’s explanatory reasons, without demanding that these also be normative reasons, let alone normative reasons which are undefeated by those which countervail. By a normative reason I mean a reason which bears on what one ought to do, whether or not one realises that it has any such bearing at all. By an explanatory reason I mean a reason forwhich one acts in a given instance. As John Gardner has explained, an explanatory reason is (at least ordinarily) a reason which is taken to be normative—after all, one acts for that reason—but it need not actually bear at all on what one ought to do, let alone provide rational support for what one does.46
The argument from answerability demands that the state offer certain explanatory reasons to a certain audience.47 Whether or not they actually provide normative support for its actions, the state must offer an account of its reasons for enforcing the criminal law, as well as its reasons for creating any given criminal offence. Whenever these reasons are taken to actually justify the state’s activities (when, in other words, they are taken not only to be normative reasons, but to be undefeated normative reasons) it is an account of this putative justification which is owed by the state.48
Now it follows that the state’s actions may be justified in the very way they are taken to be, and that the state may still fail to do what is demanded of it by the argument from answerability. It will so fail when the state offers no account of its reasons for acting, or when it offers a misleading account of those reasons to those owed the account. This, then, is the sense in which the demands placed on the state are exacting. It is not enough to have justification for creating or enforcing laws. One must provide an account of that justification in order to do one’s duty.49
I just mentioned that if the argument from answerability succeeds, the state must offer answers to those to whom they are owed. In fact, there are two groups owed answers for the imposition of the criminal law, and different things for which each group is owed them. I have already claimed that answers are owed for the criminal law’s enforcement. It is part and parcel of that enforcement that arrests are made, charges brought, prosecutions embarked upon, convictions handed down, and sanctions handed out. The argument here is that those subjected to such steps are entitled to an account from the state: an account of why any such steps are taken against them.
Having said this, we should not ignore those who—be it through luck or judgment—never experience such a predicament. This group of law-subjects still have the criminal law imposed upon them, albeit in a different way. The point is not only that the criminal law imposes (or claims to impose) an obligation to contribute to its running costs, though this it does through the tax system. It is also that the criminal law imposes (or claims to impose) a much more general obligation: an obligation to do, or refrain from doing, anything which is a criminal offence.50 Of course, one might not worry too much about either of these (claimed) obligations were they the toothless assertions of a powerless entity. But when each is backed up by the threat of coercively-imposed sanctions—a threat the state’s might makes anything but idle—the scope of the criminal law becomes of concern to law-subjects generally. The argument here is that those subjects are entitled to an account from the state, explaining why all it has criminalised has been brought within that scope.
So far I have merely outlined the shape of the argument from answerability. I am yet to give any reason to believe that answers of the kind discussed above are actually owed by the state. We can make progress here by considering the work of Antony Duff. For Duff, whether or not we must answer to others depends on our prospective responsibilities.51 These are the responsibilities we have before we do anything untoward, given by the range of matters, in Duff’s words, ‘that it is up to us to attend to or take care of’.52 Now for Duff, responsibility is multiply relational. We owe prospective responsibilities to particular people, and we are responsible to them for particular things.53 Teachers owe prospective responsibilities to their students for those students’ education. Doctors owe prospective responsibility to their patients for treating those patients effectively.
How are we to know if we are prospectively responsible to a given person for how we act in a given instance? We must work out whether that person’s interests give us reasons to act (or to refrain from acting) in that particular instance.54 In many cases, Duff argues, this depends on the roles we occupy. It is because I am their doctor that my patients’ interests in being treated give me reason to treat them effectively. Others do not have the reasons I have because they do not occupy the same role. Duff accepts, of course, there are other cases where roles are less important. We all have prospective responsibilities not to kill, or maim, or injure others. Why? Because whatever role we happen to occupy, the interests others have in these things not occurring give us reason not to so act.
Now according to Duff, it is our failure to fulfil our prospective responsibilities for which we are answerable in a given case.55 We are obliged to answer for this failure, to those to whom the responsibilities were owed. It follows that we are not uniformly answerable to everyone we meet: the doctor need not answer to a stranger on the street for his failures in treating a patient. Nor do we need to answer for all the effects of our actions: those effects of the doctor’s conduct which give him no reason to act otherwise, are effects for which the doctor need not answer to anyone.56
This all raises the question of the state’s prospective responsibilities when it comes to the imposition of the criminal law. My argument here is that the state has prospective responsibilities both to refrain from creating criminal offences, and to refrain from enforcing the criminal law. This may sound wildly implausible because talk of responsibility sounds like talk of what the state should do all things considered. It may appear, in other words, that I am arguing for the criminal law’s abolition. Not so. While it is true that the state must answer for doing that which it has a prospective responsibility not to do, it may have an excellent answer for doing so. We just saw that one has prospective responsibilities not to φ whenever the interests of others provide one with reason not to φ. No-one said there could not also be reasons in favour of φing, nor that these reasons could not be strong. Such reasons may not only make φing permissible, they may even make it obligatory.
Now I think it plain that enforcing the criminal law involves the state in doing numerous things which the interests of others give it reason not to do.57 These include forcibly detaining, publicly censuring and coercively sanctioning people, some of whom will be rightly accused of offending, others of whom will not. It is no use denying that there are important interests at stake here. Those detained, censured and sanctioned all have interests in these things not occurring: interests in being free from detention, and in not having their self-respect and future prospects damaged by criminal conviction. You may say that murderers and rapists actually have no such interests. But if they truly have no interest in such things as being detained or stripped of their money, it is unclear why we ever thought these appropriate criminal sanctions. Surely it is precisely because the opposite is true that those thought to have committed such grievous wrongs are treated in these ways.
Nor is it open to the state to claim that the effects of enforcing the criminal law are none of its concern. As many have pointed out, if the state exists to do anything, it is to act on behalf, and in service, of its people.58 It follows that the effects of state action on those people’s interests are among the most important things to which the state must attend. The fact that enforcing the criminal law will so significantly set back so many such interests cannot but give the state reason to refrain.59 Remember, this is not to say that enforcement action cannot be justified: it may, in some cases, be obligatory. But if we accept (as we should) that such things need justification, we simultaneously accept that there is reason not to do them: we do not need to justify that which we have no reason not to do. Once we see that the aforementioned reasons are a function of the interests of those against whom the criminal law is enforced, it follows that the state owes prospective responsibilities to those it arrests, convicts and sanctions. It further follows that the state is answerable to those people for the enforcement of the criminal law.
What of the creation of criminal offences? Is there also a prospective responsibility not to criminalise? Here is one reason to think so. At least when dealing with the type of offence I have discussed in this paper, there are clearly people with interests in the state not branding the offending behaviour as a breach of duty and imposing liability to punishment. The 17-year old who wishes to kiss his 15-year old girlfriend is but one obvious case. More generally, the chilling effect such offences may have (be it on private, experimental behaviour or on movement in public space) points to a wider public interest in a narrow(er) criminal law. As servant of the people, the state has prospective responsibilities not to set back this interest by extending the criminal law. This fortifies the responsibility adverted to at the beginning of this paragraph—and equally applicable to other actors—not to threaten people with coercion for doing the morally innocuous.60
This is already enough to make my point. But note also that whatever the type of offence, it is a highly probable consequence of criminalisation that some of those suspected of offending will experience the criminal process. It is also likely that some of these suspects will not have offended at all. We saw a few paragraphs ago that we all have interests in not being arrested, convicted or sanctioned. We have a particular interest in not experiencing this when we have done nothing wrong. These interests give the state reason not to do anything which will lead to such experiences, including the creation of criminal offences. If this is right, the state has a prospective responsibility not to criminalise. Accordingly, it is answerable to its people when it does.
My argument has been that a state which creates criminal offences, and enforces the criminal law, owes an account of what it takes to justify so doing. It owes that account to its people generally, as well as to those against whom the law is enforced. Of course, states cannot always do things in the way we do them in everyday life. They cannot stand opposite us in a room and explain as might a friend or acquaintance. But this only explains why the stylized proceedings of the courtroom, and the provision of explanations through the media, are of such importance. For these are manageable ways for states to answer where they are answerable: ways to provide people with the account they are owed of what is taken to justify their treatment by the state. When it shuts off these channels of communication, or sends out messages which mislead, the state fails to do its duty: it refuses to provide its people with the answers they are owed.
Let us return at long last to the three phenomena discussed in the preceding three sections of this paper. I have just argued that the state owes an account of why it creates criminal offences. Yet we saw earlier that offences now exist to facilitate the conviction of wrongdoers, which are presented as if (in traditional vein) they exist to guide citizens away from offending. The trappings of crime continue to be attached to these offences, and nowhere is it made clear that those trappings now misrepresent the intentions of the state. To mislead people in this way about what offences exist to achieve is to deny those people a true account of why those offences were created.
A similar complaint can be made about the esoteric liability discussed in connection with the scope of the criminal law. The state does not even publicise the existence of this liability, preferring instead to encourage the belief that it does not exist. I have argued that the state owes its people an answer for the criminalisation of behaviour. It thus owes those people its justification for the entire scope of the criminal law. When the state conceals the law’s true scope it frees itself from this duty. By concealing the existence of liability created on the quiet, it conceals the need to answer for it. As long as that liability remains esoteric, no answers will be provided.
Lastly, consider the argument of the previous section addressing the nature of the criminal process. I argued there that this process presents offending behaviour as though it is always grounding conduct—as though it gives the state grounds for prosecuting people and seeking convictions. But I also argued that there are some cases in which this is nothing more than a fiction—where offending behaviour figures only among the conditions for prosecutorial validity, and the true grounds for the law’s enforcement lie elsewhere.
To see the implications of this for the duty to answer, consider the criminal trial. When offending behaviour does provide the state’s grounds for seeking defendants’ conviction, the requirement that the state prove that behaviour at trial serves an important non-probative purpose: it ensures that the state must offer its answer for seeking a guilty verdict.61 To put the point more fully: when the state has to put forward in court that which grounds its attempt to convict, it must give both court and defendant its explanatory reasons for the attempt. In doing so, the state gives the defendant an account of what it takes to justify its actions: it gives the defendant an answer for its enforcement of the criminal law. The key point here is that this need not occur in respect of the offences discussed in the previous section: when the state’s grounds are no part of the offence to be proved at trial, the state need not give the answers it owes the defendant for the enforcement of the criminal law.
At this point it may be objected that I am seeking answers from the wrong party. For have Duff and others not convincingly argued that the point of the trial is to call defendants to answer for the alleged commission of crime?62 I do not deny the importance of such insights here. My aim is simply to show that we can also see things the other way around. Just as the defendant is pressured to answer for himself by the state’s attempts to prove a crime against him, so the state is pressured to answer for itself by the very courtroom procedures those attempts initiate. For it is part and parcel of those courtroom procedures that the defendant is entitled to resist the state’s case: both by requiring the state to prove that case, and by seeking to disprove it once it is made. This, of course, requires provision of legally-recognised reasons for the defendant’s conviction: an account of why the defendant should be convicted relative to the relevant offence-definition. If this is right, calling defendants to answer for crime opens the state up to its own call to answer: it must offer an account to the courts of why the defendant should be convicted in each case it brings.63
Now I have already explained why we should call the state to answer for its enforcement of the criminal law. I have argued that the state is answerable to those it seeks to convict, for that very attempt. A transparent criminal trial is one which forces the state to do its duty: it must give its grounds for seeking the defendant’s conviction, and respond to his objections. But when these grounds are excluded from offence-definitions, the state wriggles out of its duty. It can put forward merely pretextual grounds at trial, and thus refuse answers to those it tries: it need not explain what it takes to justifies convictions through the advocates it retains in court. Notice finally that because the same offence is put forward on the street and at the police station, the same point can be made throughout the criminal process. When offences of the type discussed in the previous section are being enforced, the state need no longer explain through police forces or prosecutors why it arrests and charges people either.
This essay has discussed three phenomena of which it has found evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of criminal offences the goal of which is not to guide potential offenders away from offending; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. My argument came in two stages: first, I argued that the state encourages the belief that the three phenomena I just mentioned are no part of English law; second, I argued that the state should come clean because it is answerable for the criminal law.
I argued that when the state criminalises behaviour, it owes an account of why it does so. But when the true goals of criminalisation are concealed, we are denied the state’s reasons for criminalising; and when the very existence of liability is hidden from view, we are denied those reasons also. I further argued that answers are owed for the criminal law’s enforcement, answers the state has long provided via the criminal process. But when the true grounds for arrest and prosecution are excluded from that process, those against whom the law is enforced are denied the answers they are owed. To come clean here requires nothing short of substantive reform: offences must once again capture the state’s grounds for prosecution, so those grounds are brought back into the criminal process.64 Only then—in court, on the street and at the police station—will the state consistently offer the answers it owes for the imposition of the criminal law.
Some have argued that such moves undermine the presumption of innocence: see Tadros and Tierney (2004). For a treatment of such offences which argues that they create both pure and imperfect procedural injustice, see Edwards (2010).
In what follows I will sometimes talk simply of what is done by ‘the state’. I should not be taken to be overlooking the difficulties involved in explaining how entities as complex as the state can be described as single agents. Suffice it to say here that if the state is to act at all, it must do so via the officials who act on its behalf and on behalf of its constituent institutions. For discussion, see Gardner (2007a).
As I use the term, behaviour is criminalised whenever it is made a criminal offence.
Of course, even prior to criminalisation one might have found oneself in the dock despite one’s behaviour falling outside the criminal law’s scope. But the fact that a mistake was then required shows how different one’s situation then was: one had committed no offence, and thus ought to have needed no defence. Post-criminalisation, this is no longer the case.
This is not to say that the criminal law’s scope is now greater overall than at some previous time. This claim would require significant doctrinal and historical work, as well as the tools required to compare systems which each extend further than the other(s) in certain respects. My claim here is only that specific extensions in liability have taken place in the manner described. For discussion of the work needed to make claims of the former type, see Lacey (2009).
The definition of ‘act of terrorism’ is extremely broad in English law. Under section 1 of the Terrorism Act 2000, acts of terrorism include, inter alia, all acts which are a) designed to influence the government, b) aim to promote a political, religious or ideological cause, and c) cause serious damage to property, or are designed to seriously disrupt an electronic system. Eco-protestors who aim to make a political point by daubing graffiti on a government building, thus commit terrorism if the damage to property is sufficiently serious.
It is true that the offences created by section 45 of the 2007 Act, and section 58 of the 2000 Act, both make provision for defences of reasonable behaviour or excuse. But as I have already noted, it matters that even reasonable conduct has been made an offence: one must have one’s defences ready whenever one so acts, and one had better be able to prove one’s case to ensure one is not convicted.
For instance, the Clean Neighbourhoods and Environment Act 2005 may not seem an obvious source of criminal offences which one might be inadvertently committing. But if one’s local authority has designated one’s area of residence an ‘alarm notification area’, one commits an offence under sections 71 and 72 of the Act if: (a) one’s residence has an audible alarm and one fails to designate a key-holder who can turn it off, or (b) one designates said key-holder but fails to inform the local authority.
You may say we now have this ‘something more’ in the form of the Statute Law Database. But it is not clear that having to scour the database makes one’s task that much easier. Offences remain buried in legislation which does not obviously address the criminal law; there are still thousands to search through, to which new additions are frequently made. Database or no database, it would be a mammoth task to ensure one is not about to stumble into offending. And this all assumes one actually knows that the database exists—alas, this is itself a little-publicized fact.
Would attempting to bring thousands of offences to the attention of the public really help with knowledge of the law? Recall that many such offences regulate specialist activities and thus need only be brought to people’s attention on point of engagement in those activities. Those which do cover non-specialist activities (and do not merely capture the obviously criminal) could be brought actively to public attention with far less danger of information overload. Were this done on a uniform basis the concern of this section would be significantly reduced.
Which suggests yet another problem with ascertaining the scope of the criminal law: much of it is drafted in such technical terms that ordinary people are highly likely to make mistakes about the true scope of offences even if they discover them. For discussion, see Spencer (2008).
Will the offences in question not become better known as the police enforce them over time? Certainly those prosecuted will become aware of the existence of the offence with which they are charged. But it is unclear that people generally will be much benefited thereby: most such enforcement action tends to occur quietly and get little attention. Of course, things may be different if enforcement becomes so widespread as to ensnare large swathes of the population. But this is no comfort to those from whom the law was kept quiet until after it was enforced against them. Bentham famously argued that to impart knowledge of the law in this way is to resort to dog law: instead of trying to obtain compliance by laying down rules in advance, one waits until an offence has been committed then punishes the offender. See Bentham (1823).
Sections 2 and 7 of the Act make it an offence to smoke in certain ‘smoke-free premises’.
The Constitutional Reform Act 2005 s1 declares that the Rule of Law is an ‘existing constitutional principle’ in the United Kingdom. In April 2004, Lord Falconer, then Secretary of State for Constitutional Affairs, asserted in Parliament that the Labour Government responsible for significantly expanding the criminal law, and for the specific offences mentioned, has ‘always strongly defended the rule of law and will continue to do so’: see HL Deb vol 660 col 687, 27 April 2004. A year earlier, the Prime Minister, in a speech to the US Congress, asserted that the Rule of Law is one of ‘the universal values of the human spirit’: see Blair (2003).
As John Gardner puts it, the Rule of Law requires that the law ‘must avoid taking people by surprise, ambushing them, putting them into conflict with its requirements in such a way as to defeat their expectations and frustrate their plans’. See Gardner (2008, p. xxxvi).
In this section, references to the state are primarily references to those officials involved in the law-making process. As J.R. Spencer has explained, this process usually begins with a team of officials from a given government department, who, with the help of Parliamentary Counsel, produce a draft Bill for Parliament. Legislators then debate (and may well amend) the Bill, before voting on whether it becomes law. In light of the many actors involved, you may suggest that identifying the goals of legislation will be difficult if not impossible. Like Douglas Husak however, I prefer to work on the basis that any difficulties here can be resolved. Husak argues that much work on the criminal law presupposes such a resolution, and that the existence of statutory purposes ‘can scarcely be denied’. My own approach to the problem is to focus on the governmental officials whose proposals constitute a Bill. Their objectives are often fairly easy to discern from command papers and other documentation; those objectives explain why there is a Bill to vote on in the first place, and (barring drastic amendments) the shape the legislation ultimately takes. See Spencer (2008) and Husak (2008a, pp. 133–134).
Perhaps a more precise characterisation would be that offences are created to reduce only that offending behaviour which furnishes no defence. For brevity’s sake I omit this qualification from the text in what follows—the present and following sections should be read with this in mind.
The parenthetical reference is needed because there is dispute about whether the availability of punishment is a necessary feature of anything rightly called a criminal offence. For the view that it is, see Husak (2008b).
This is the language used in both the Terrorism Act 2000, and Serious Crime Act 2007, discussed above.
Debates about the criminalisation of drugs, for instance, often revolve around the argument that criminalisation ‘sends a message’ about drug-use. It is taken for granted that the message sent is that drugs should not be used.
Unless it is reasonably believed that the other party is 16 or over. I assume here that the ages of the parties are well-known to each other.
According to the guidance issued by the CPS, ‘it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties…this is the intention of Parliament’. In the more hesitant language of the command paper, there are cases where ‘the intervention of the criminal law may not be appropriate’. See ibid, para. 52, and Crown Prosecution Service (2010).
This example has been incisively discussed by Victor Tadros, on whose work I draw in this section. Tadros calls offences like this ‘intentionally non-ideal’, because he notices that law-makers are content for some offending to continue. The assumption is that criminal offences exist to eliminate offending—an ideal world, where offences function perfectly, is one in which no such behaviour remains. While this view is certainly the one promoted by the trappings of crime, my discussion in what follows suggests that the goals—and the ideals—of some criminal offences have been surreptitiously altered. For discussion, see Tadros (2008).
Relevant training includes training of the type detailed in s. 6(1) of the 2006 Act. In addition to training in the use of noxious substances, this covers ‘the use of any method or technique for doing anything else that is capable of being done for the purposes of terrorism’ and ‘the design or adaptation for the purposes of terrorism… of any method or technique for doing anything’.
The idea, then, is that prosecutors will exercise significant discretion in prosecuting. Douglas Husak has argued that there are serious Rule of Law concerns here, concerns only amplified when we realise that law-makers are deliberately delegating such discretion to petty officials. For discussion, see Husak (2008a, pp. 26–32).
Having acknowledged the inappropriateness of intervening pursuant to some instances of offending, the command paper sets out the offence’s true aims: ‘the criminal law must make provision for an unlawful sexual activity charge to be brought where the sexual activity was consensual but was also clearly manipulative.’ See Secretary of State for the Home Department (2002, para. 52).
By grounds, I mean the considerations taken by a given actor to be sufficient to justify their action.
At least, at each stage prior to conviction. Those grounds may be relevant to sentencing, but their absence at this stage will not save the convicted: it is likely to at best result in a degree of mitigation.
It is important to see that here, as in the previous section, I am talking primarily from the perspective of law-makers. There will be cases where law-enforcement agents are told that offending is not itself taken to justify making arrests. But this need not always be so: law-makers may believe that only factors external to the offence-definition will justify arrests, while allowing law-enforcers to believe that offending is itself such a justification. Why create such a disjunct? Perhaps enforcement agents would be overly cautious if law-makers revealed their true view of the justificatory situation. Whatever the answer, my focus here is on the designs of law-makers first and foremost.
As it happens, this is a case where the truth has been communicated to law-enforcement agents: see note 27 above and the surrounding text.
I have discussed the implications of such a move for the justice of the criminal trial elsewhere: see Edwards (2010).
As mentioned previously, such disruption would constitute terrorism under the legal definition if it is sufficiently serious. See note 8 above.
Among other things, sections 12 and 13 of the Sexual Offences Act 2003 make it an offence for anyone under 18 to cause anyone they know to be under 16 to look at an image of a person engaging in sexual activity for the purposes of sexual gratification. As J.R. Spencer points out, this criminalises young boys looking at dirty magazines for the purposes of a sexual thrill. For Spencer, this is one of the many cases in which the 2003 Act criminalises behaviour ‘for which it would be scandalous’ if anyone were prosecuted: see Spencer (2004). My point here is that such a scandal was surely never meant to occur: offending alone was rarely if ever supposed to provide grounds for prosecution.
Nor are examples necessarily confined to less familiar criminal offences: is it really the case that mere touching of items on display in a shop provides grounds for prosecution, if done dishonestly and with intention to permanently deprive? As a result of the decision in Gomez  AC 442, such touching is theft in English law even if no further steps are taken. Yet further features are presumably required if prosecution is to be thought justified.
This justification need not be thought to be decisive in all circumstances: there may be various reasons which defeat it, including lack of resources and the need to attend to more important matters.
As will have become clear, the second and third phenomena discussed in this essay are related. It is often precisely because the grounds for prosecution have been written out of the law that the offence which remains is not supposed to guide potential offenders. It is worth noting however, that this need not always be so. One might still intend to guide people away from φing, without thinking that φing itself provides grounds for prosecution. And one might use the criminal law to prohibit φing precisely because the trappings of crime will send the message that one should not φ. This would be a case of the third phenomenon, but not the second.
Subject to considerations of the type discussed at note 64 below. As mentioned there, I do not rule out the possibility that the duty argued for in this section might conflict with, and be defeated by, rival legislative (or executive) duties in certain cases.
While my presentation of this argument is necessarily something of an outline, in this instance I think an outline well worth presenting. As I will later mention, the answerability of defendants has been influential in recent criminal law theory. The suggestion here is that work remains to be done on the state’s duty to answer, specifically for the imposition of the criminal law on suspects and the wider populace. My goal in this paper is to do a modest amount of that work: first, to offer an account of the way in which arguments from answerability could be turned on the state, giving rise to the state’s own duty to answer for the criminal law; second, to explain the relevance of that duty to particular doctrinal phenomena, specifically to the three phenomena already discussed in this paper. Further substantiating these arguments must remain a task for another day.
I assume here that the state does take itself to have justification for both of these things, the argument being that it should present that putative justification to an audience identified below.
Which is not to say that we should be indifferent as to whether the state’s explanatory reasons are the normative reasons they are thought to be. While this is of evident importance, the demands it places on the state are not the focus here.
One takes oneself to have justification only if one believes that one’s reasons for acting are undefeated in rational conflict which those which countervail. If one believes that one’s reasons for acting are outweighed, cancelled or otherwise defeated by their opponents, one believes one’s action to lack justification. I base these remarks on the account defended in Gardner (2007b, pp. 91–120).
Isn’t it an account of that which one takes to justify one’s actions that is required? True, but as John Gardner has pointed out, if one has justification for one’s actions, one both has an undefeated normative reason for acting and one acts for that reason, such that the undefeated normative reason is also an explanatory reason: ibid. It follows that where one has justification, an account of one’s explanatory reasons cannot but be an account of the reasons which constitute one’s justification.
At least where there is not also an available defence. See note 19 above.
Ibid, pp. 30–31.
Ibid, pp. 22–30.
While he is not explicit on the point, Duff’s discussion of various examples suggests that the comments in the text reflect his views. For instance, when discussing the responsibility of neighbours he says that to deny one has a prospective responsibility to one’s neighbour for playing loud music, or for living with one’s gay partner, is ‘to deny that the effects on them give me any reason to modify my conduct’. Ibid, p. 33. Clearly talk of reasons here is talk of what I above called normative reasons: reasons which actually bear on what one ought to do. In the pages which follow, references to reasons simpliciter are references to reasons of this kind.
Why think answers are appropriate here? Why can we not leave well alone when we fail to fulfil our prospective responsibilities? These are important questions to which I cannot do justice here. Perhaps part of the answer lies in the fact that by offering an account of why we acted as we did, we at least express some recognition that those whose interests gave rise to our responsibility have interests which matter. True, we failed to conform to the prospective responsibility those interests generated, but we still respond retrospectively to a different interest: an interest in receiving an explanation of why we did what we did. To refuse even to offer this much is to add insult to injury.
Duff considers the case of a doctor who prescribes contraceptives to a girl of 15. Does the doctor need to answer for the likely effect of doing so, namely that the 15-year-old is now more likely to have unlawful sexual intercourse? Or does this likely effect simply give him no reason to modify his conduct: is his only prospective responsibility to give appropriate medical treatment? See Duff (2007, pp. 35–36).
We need not go as far as Douglas Husak, and claim that there is a right not to be so treated. Nor need we go as far as to say that enforcing the criminal law is always wrong. We need only claim that the state has reason not to enforce it, as a function of the interests of its people. For Husak’s argument that the first claim applies to criminal punishment, see Husak (2008a, pp. 93–101).
Thus for John Locke it is of the essence of political power that the various rights the state possesses are to be exercised ‘only for the public good’: see Locke (1988). For modern philosophical endorsement of similar views, see Duff (2007, pp. 49–50) and Gardner (2007b, p. 217).
Nor are these reasons of trifling weight. Ceteris paribus, it is highly plausible to think that the stronger the reasons not to φ, the more important one’s responsibility to refrain, and the more important it becomes that one answers for φing.
It is a testament to the state’s ability to persuade us of its legitimacy that we seem to forget this responsibility as soon as the state gets involved.
Of course, such proof also serves the important purpose of making it more likely that those convicted will have done whatever grounds their conviction. The importance for procedural justice of these grounds being in issue before the courts is a matter I have discussed elsewhere: see Edwards (2010).
Why call defendants to answer for such things? Because they are answerable to the public for doing so. Crimes, Duff claims, are public wrongs, and to commit a public wrong is to launch an attack on the values of the political community. Such wrongs are wrongs to the public, as well as to their immediate victim, and offenders have prospective responsibilities to the public not to commit them. It follows, as we saw above, that offenders are answerable to the public if they commit a public wrong. The criminal trial is the means by which the answerable are called to answer by a state acting on its public’s behalf. I cannot address the merits of Duff’s wider views here. Suffice it to say that the claims in the text do not depend on their truth. For a sustained version of the argument as it applies to the criminal trial, see Duff et al. (2007).
This is not to say that Duff et al. are blind to this point. They note, for instance, that to recognise the need to try a defendant is to ‘recognise the need both to explain to them why we are responding in this way, and to attend to their explanations and defence of what they did’. See Duff et al. (2007, p. 138).
Might there be cases where attempting to come clean brings law-makers into conflict with other legislative (or executive) duties? I do not rule this out here. The demands of the duty to answer need not be thought to be unopposed, nor to emerge victorious in all moral conflicts. There may well be cases where distinguishing precisely between behaviour which does and does not ground prosecution would create unwieldy, unmanageable laws, which cannot be used by officials or laymen as serviceable guides to behaviour. In such cases, the legislative duty to uphold the Rule of Law will point away from perfect compliance with the state’s duty to answer, which demands that those grounds show up in the norms used to prosecute criminal defendants. All this shows is that the legislative role is not free of moral conflict. How such conflicts should be resolved when they arise cannot be discussed further here.
My thanks to John Gardner, Andrew Ashworth, Mike Redmayne and an anonymous reviewer for extremely helpful comments on earlier versions.