Abstract
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.
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Notes
See Husak (2008a).
See Tadros (2008).
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).
See Hart (2008, pp. 40–50).
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.
See Secretary of State for the Home Department (2002, para. 52).
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.
For a classic treatment, see Bittner (1967).
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 [1993] 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.
See Gardner (2007b, pp. 91–92).
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.
See Duff (2007, pp. 30–36).
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).
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.
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Acknowledgments
My thanks to John Gardner, Andrew Ashworth, Mike Redmayne and an anonymous reviewer for extremely helpful comments on earlier versions.
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Edwards, J. Coming Clean About the Criminal Law. Criminal Law, Philosophy 5, 315–332 (2011). https://doi.org/10.1007/s11572-010-9111-8
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DOI: https://doi.org/10.1007/s11572-010-9111-8