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Positive Obligations in

Criminal Law

Andrew Ashworth

OXFORD AND PORTLAND, OREGON

2 Is the Criminal Law a Lost Cause?

aim is to demonstrate the close connection, at the level of principle and policy, between the criminal law and its penal context. What emerges is nothing so concrete as a formula for determining whether or not certain conduct should be criminalised. Rather, arguments are presented in favour of a more principled development of the criminal law, recognising the essential links between procedure, enforcement and sentence. Without a princi- pled approach of this kind, the criminal law is likely to remain something of a lost cause.

1.1 DISTINGUISHING CRIMINAL OFFENCES BY REFERENCE TO THEIR CONTENT

The sheer bulk of English criminal law makes it highly unlikely that the sub- stantive content of the offences conforms to a single test or set of related tests. There are probably around 8,000 offences now, 2 mostly created over the last 150 years, under the varying influences of governments of different political hues, movements towards criminal law reform, the expansion of regulatory mechan- isms, and so forth. It is therefore hardly surprising that, in his classic article on the subject, Glanville Williams concluded that there is no workable definition of a crime in English law that is content-based: only the different procedures of criminal, as distinct from civil, cases can serve as a reliable distinguishing mark. 3 In the realm of description, then, we can affirm that the contours of English criminal law are ‘historically contingent’ – not the product of any principled inquiry or consistent application of certain criteria, but largely dependent on the fortunes of successive governments, on campaigns in the mass media, on the activities of various pressure groups, and so forth. 4 This is not to deny that there have been elements of principle in debates on criminalisation in spheres such as abortion, prostitution, homosexual acts, and now drugs. 5 However, those debates are noteworthy for a degree of attention to the proper boundaries of the criminal law which is conspicuously absent from most other decisions to criminalise. The implementation of the Human Rights

(^2) This is a conservative revision of the estimate produced over 30 years ago by JUSTICE, Breaking the Rules (1980), suggesting that there were then about 7,000 offences known to English law. (^3) G Williams, ‘The Definition of a Crime’ [1955] Current Legal Problems 107. (^4) A prime example of this is the Dangerous Dogs Act 1991, pushed through Parliament very rap- idly in response to media pressure arising from some well-publicised incidents in which dogs of certain breeds had inflicted injury on children. This sudden invocation of the criminal law did not pass without comment in Parliament, even from those on the government side. For example, Nicholas Budgen MP decried the ‘constant appeals to public opinion’ and accused the government of legislating ‘simply as a result of pressure from popular newspapers’ (HC Deb vol 192, col 610 ( June, 1991)). (^5) The leading essay is by N Lacey, ‘Contingency and Criminalisation’ in I Loveland (ed), The Frontiers of Criminality (1995). See further A Ashworth, Principles of Criminal Law (3rd edn, 1999), Ch 2; N Lacey and C Wells, Reconstructing Criminal Law (2nd edn, 1998), Ch 4; W Wilson, Criminal Law: Theory and Doctrine (1998), Ch 2.

Distinguishing Offences by Content 3

Act 1998 should bring some improvements in this respect. Indeed section 19 of the Act, already in force, requires the Minister introducing a Bill to certify that the terms of the Bill comply with the European Convention on Human Rights (or to announce that no such statement can be made). 6 It is well known that Articles 8 to 11 of the Convention declare rights that must be respected, subject to certain exceptions – the right to respect for private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expres- sion, and the right to freedom of assembly and association. There are also other parts of the Convention that may have an impact on substantive criminal law, such as Article 2 on the justifiable use of force, Article 3 on chastisement of chil- dren, Article 5 on the insanity defence, and so on. It would be unwise to over- estimate the impact of these Convention rights on the general shape of the criminal law: 7 they are likely to exert some influence on the substance of offences and defences, but this is unlikely to falsify the proposition that the varying con- tent of English offences cannot be captured by any general definition of crime. In descriptive terms, then, the contours of English criminal law are indeed historically contingent. To cast some light on this, let us examine all the statutes passed in 1997, leaving aside those applying only to Scotland or to Northern Ireland. What we find are at least 39 crimes, 8 most of which take one of four different forms. Some 13 of them are defined so as to require the prosecution to prove either intention or recklessness, which many regard as, in principle, the most appropriate culpability standard if criminal liability is to be imposed, and certainly if a significant sanction is to be imposed. 9 Most of these offences penalise the giving of false information. Then there are nine strict liability offences, subject to exceptions which the defendant bears the burden of proving, a familiar legislative device. 10 Eight further offences take a somewhat similar form, except that they penalise omissions (typically, failing to comply with a statutory requirement), but they too place on the defendant the burden of estab- lishing an excuse or exception. Finally there are six strict liability offences, some of them penalising omissions, which include no specific provision for any defences. In terms of function, several of the offences of making false statements are designed to underpin a regulatory scheme – for example, those established by the Architects Act 1997, the Nurses, Midwives and Health Visitors Act 1997, the Sex Offenders Act 1997, the Sexual Offences (Protected Material) Act 1997, the Plant Varieties Act 1997, and the Social Security Administration (Fraud) Act

(^6) Strictly speaking, compatibility with those parts of the Convention that are set out in the Schedule to the Act, notably Articles 2–12 and 14, and Protocols 1 and 6. (^7) For analysis, see B Emmerson, A Ashworth and A Macdonald (eds), Human Rights and Criminal Justice (2nd edn, 2007), Ch 3. (^8) This means 39 crimes under separate provisions. If one were to analyse those provisions under the law as established in R v Courtie [1984] AC 463, the number of discrete offences would be much higher. (^9) For argument and further references. A Ashworth, Principles of Criminal Law (above n 5), Ch 5. (^10) Ashworth, ‘Article 6 and the Fairness of Trials’ [1999] Crim LR 261, at 265–67.

The Procedural Distinction 5

prise, and in any event the judges themselves often qualify a principle soon after declaring it so resoundingly. 16 Despite the disorderly state of English criminal law, it appears that the Government does profess some principles for criminalisation. In response to a parliamentary question, Lord Williams of Mostyn has stated that offences ‘should be created only when absolutely necessary’, and that

‘In considering whether new offences should be created, factors taken into account include whether: • the behaviour in question is sufficiently serious to warrant intervention by the crim- inal law; • the mischief could be dealt with under existing legislation or by using other remedies; • the proposed offence is enforceable in practice; • the proposed offence is tightly drawn and legally sound; and • the proposed penalty is commensurate with the seriousness of the offence. The Government also takes into account the need to ensure, as far as practicable, that there is consistency across the sentencing framework’. 17

We will return to these professed principles at later points in the chapter. For the present, it suffices to say that our brief examination of the criminal laws of 1997 confirms the ‘historical contingency’ thesis and suggests that the laws being enacted bear little relation to the Government’s supposed principles. However, adoption of the ‘historical contingency’ thesis should not lead us to abandon discussion of principle, even if it warns us to scrutinise rhetoric with care. It is worth recalling the warning of Nelken that ‘the corrosive force of insisting that law is no more than a social construction can also undermine objective criticism of its injustices and delegitimate attempts to shape it in supposedly more pro- gressive directions’. 18 With this in mind, we begin to move from the descriptive to the normative, and to consider whether it is possible to identify criteria or standards that ought to be satisfied before it is decided to criminalise certain conduct – some of which may be similar to the principles which, according to Lord Williams, inform current practice.

1.2 THE PROCEDURAL DISTINCTION

Glanville Williams ended his search for a definition of crime with the conclu- sion that only a formal definition is sustainable: ‘in short, a crime is an act capa- ble of being followed by criminal proceedings having a criminal outcome’. 19 The key procedural elements that distinguish criminal from civil proceedings are

(^16) As in almost all the cases listed in the three previous notes. (^17) Lord Williams of Mostyn (then Minister of State at the Home Office), in a written reply to a question by Lord Dholakia, HL Deb, vol 602, col WA57 (18 June, 1999). (^18) D Nelken, ‘Reflexive Criminology?’ in D Nelken (ed), The Futures of Criminology (1994), 7. (^19) [1955] Current Legal Problems 107, at 130.

6 Is the Criminal Law a Lost Cause?

that criminal proceedings are generally brought by a public official as prosecu- tor, and that they can result in the conviction of the defendant and in the pass- ing of a sentence. These elements are close to the criteria adopted by the European Court of Human Rights when it has had to determine whether or not certain proceedings should be labelled as ‘criminal’ rather than ‘civil’. 20 Thus if the proceedings (a) are brought by a public authority, and either (b) have culpa- bility requirements 21 (eg in requiring a finding of ‘culpable neglect’ or ‘wilful default’, or (c) have potentially severe consequences (such as imprisonment), the court has not hesitated to declare that they should be regarded as ‘criminal’ for the purposes of the European Convention on Human Rights even if they are labelled ‘civil’ in the domestic law of a Member State. 22 It is well known that many offences, in the United Kingdom and in other countries, are offences of strict liability which require little or no fault element. Thus condition (b) is simply a factor that assists in determining whether an ostensibly civil action should be characterised as criminal, and is an alternative to condition (c). As for (c) itself, it is possible to offer many examples of civil judgments which may be far more onerous than criminal sentences – a simple case might be a moderate fine imposed by a criminal court for a driving offence, compared with a substantial award of civil damages for negligence arising out of the same incident. But it is generally true that civil courts cannot impose imprisonment, whereas criminal courts can do so (where the maximum penalty permits it). Civil courts certainly cannot order defendants to perform positive acts of the kinds required by a community service order or probation order, which can amount to severe restrictions on a person’s liberty. Injunctions in civil proceedings have a much more limited ambit. Recent decisions of the European Court of Human Rights show that, even if the penalty is a fine, the possibility of imprisonment may be sufficient to justify classifying the proceedings as ‘criminal’. 23 The role of public authorities in bringing proceedings (a) provides a good example of the blurring of boundaries in modern legal systems. It is true that the vast majority of criminal cases are prosecuted by a public authority: the Crown Prosecution Service brings proceedings in most cases of any seriousness, with other authorities such as HM Customs and Excise, the Environment Agency and local trading standards officers accounting for many more. A right of private prosecution remains in England and Wales, but it is used relatively

(^20) As we will see in part 4 below, a person who is ‘charged with a criminal offence’ has a much more extensive set of rights under Article 6 than participants in other proceedings; moreover, the European Court of Human Rights regards the term ‘criminal’ as having an autonomous meaning, ie one that cannot be dictated by domestic law but is determined in Strasbourg on principle. (^21) Somewhat confusingly, the European Court tends to refer to these as ‘punitive elements’, even though the application of this second criterion demonstrates that it is concerned with culpability and the third criterion might more aptly be described as ‘punitive’: see Benham v United Kingdom (1996) 22 EHRR 293, para 56. (^22) See Benham v United Kingdom , ibid, following Engel v Netherlands , A 22 (1976) 1 EHRR 647. (^23) Eg Schmautzer v Austria (1996) 21 EHRR 511; Garyfallou AEBE v Greece (1999) 28 EHRR

8 Is the Criminal Law a Lost Cause?

This, however, is to stray into the realm of the next two topics, the function of proceedings and the concomitant protections, and so the question of the hybrid procedure for anti-social behaviour orders will be revisited below. For the moment, we may conclude that one way of distinguishing criminal cases from civil is generally, and subject to exceptions and to various hybrids, by reference to the procedure adopted – public prosecutor, conviction and sentence – rather than by reference to the content of the law itself. 27

1.3 THE FUNCTIONAL DISTINCTION

Perhaps the principal function of the criminal law is to censure persons for wrongdoing. The censuring elements consist of the conviction itself, together with the sentence of the court (which usually constitutes a punishment). 28 Thus, to revert to a familiar jurisprudential point, both a fine and a tax require a person to make a payment to the state, but the difference is that the former is a sentence that implies ‘should not do’ (ie it censures the person for wrongdoing) whereas a tax does not carry the implication of ‘should not do’. One might argue that this implication is somewhat diluted in the many offences with low penalties which fill the English statute book, of which we saw examples in the brief survey of 1997 offences earlier. But it is still possible to say, in principle, that the use of the criminal law to penalise such acts and omissions has the function of censuring persons for non-compliance with the commands of the law. There are, however, other branches of the law that proclaim the function of discouraging wrongdoing, notably those civil wrongs that constitute the law of tort. Is it possible to draw a satisfactory functional distinction between crimes and torts? One obvious preliminary point is that conduct may be both a civil wrong and a criminal offence: sometimes one slips into talking as if there is a choice between making conduct a crime or a civil wrong, whereas in fact some conduct is both a civil wrong and a crime. This is perfectly acceptable, even in an ideal world, since the functions of the various branches of law may differ. Indeed, where there is a question whether to criminalise conduct that is already a civil wrong, this draws particular attention to the justifications for criminal liability. If we focus on the law of tort, we find that few tort lawyers represent tort law as a system designed merely to secure compensation for people who have been wronged. In the first place there are those non-instrumentalists or essentialists,

(^27) Cf EJ Weinrib, The Idea of Private Law (1995), 10–11, who describes ‘an ensemble of institu- tional and conceptual features’ that serve to identify private law, eg that private law involves ‘an action by a plaintiff, adjudication culminating in a judgment that retroactively affirms the rights and duties of the parties, and an entitlement to specific relief or to damages for the violation of those rights or the breach of those duties’. (^28) Without elaborating at inappropriate length, it may be noted that at least two of the orders that a court may make as the only order after conviction may be considered non-punitive, the dis- charge (absolute or conditional) and the compensation order.

The Functional Distinction 9

such as Weinrib, who regard tort law as a system of responsibility for human conduct, based on corrective justice. 29 But then many would describe tort law in instrumental terms, suggesting that it has the social function of discouraging certain forms of behaviour. Tort liability, as its very name suggests, marks out the defendant’s conduct as wrongful (in a way that, say, schemes for the regula- tion or licensing of certain conduct may not do). As Honoré has expressed it:

‘The technique of tort law is therefore to label things as not to be done or omitted or brought about, though in a less stigmatic way than criminal law... A supporter of the rule of law... will think the state justified in trying to minimize undesirable behav- iour by a technique that treats some interests as rights and gives those who have the rights the power to avert or redress the unwanted conduct’. 30

More will be said about the alleged preventive function of the criminal law later, 31 but it is relevant to note here that it is reflected in tort law to a degree. However, the central function of tort law is surely not censure or prevention but to provide a remedy to the victim for the invasion of protected interests, usually damages but sometimes injunctive or other relief. 32 In most cases the primary function of damages is to compensate the victim for the loss, whereas the pri- mary functions of sentencing are punitive and preventive. Thus in principle there might be instances where, dealing with essentially the same set of facts, a civil court would award substantial damages when a criminal court might impose a relatively light sentence on conviction (eg manslaughter by gross neg- ligence), and where a civil court might award no damages or a modest sum when a criminal court would impose a severe sentence (eg attempted murder causing no actual injury). However, in practice the interrelationship of punish- ment and compensation is more complex and the boundaries are becoming blurred, especially in criminal cases. 33 Thus criminal courts have a prima facie duty to order the offender to pay compensation to a victim who has suffered loss or damage, injury or death. 34 In practice, however, it is rare for them to do so if the offender is unemployed or is sent to prison, which means that criminal compensation orders are not frequently used. 35 It is also perfectly possible for a

(^29) EJ Weinrib, The Idea of Private Law (above n 27) esp Chs 6 and 7; cf P Cane, The Anatomy of Tort Law (1997), Ch 7, who adopts a mixed approach that regards tort law as partly an embodiment of sound ethical principles of personal responsibility and partly a system that furthers certain social goals. (^30) T Honoré, ‘The Morality of Tort Law’ in D Owen (ed), Philosophical Foundations of Tort Law (1995), 77. (^31) In part 8, below_._ (^32) Cf the argument of Birks against those who identify these responses (especially compensatory damages) as part of the very idea of a tort, and pointing out the other forms of response that might be provided for, such as restitutionary and punitive damages: P Birks, ‘The Concept of a Civil Wrong’ in D Owen (ed), Philosophical Foundations of Tort Law (1995), 35–36. (^33) See L Zedner, ‘Reparation and Retribution: Are They Reconcilable?’ (1994) 57 MLR 228. (^34) Powers of Criminal Courts Act 1973, s 35A. (^35) Also noteworthy is the increasing interest in what is known as ‘restorative justice’. Various initiatives march behind this banner, and many of them raise the possibility of compensation for the victim. See, eg the essays in A Crawford and J Goodey (eds), Integrating a Victim Perspective in Criminal Justice (2000).

The Functional Distinction 11

to form part of the criminal law and (unless there are periods of imprisonment in default) it would be unlikely to be held by the European Court of Human Rights to be criminal in substance. 40 Rather, it is a public-private hybrid within the fields of civil and regulatory law. In many countries the enforcement of com- petition laws has been chiefly the business of public regulators, but private enforcement has now become possible in several jurisdictions. 41 The main advantages of permitting private enforcement in addition to public enforcement are that the private enforcer has a distinct interest in pursuing the action, and may be subject to fewer fiscal or other restrictions than public regulators. Private enforcement can be regarded as right in principle, since it serves the aim of cor- rective justice if the injured party is able to recover compensation for the losses caused by the anti-competitive practice; also, from a broader perspective the activities of private enforcers may enhance the deterrent effect of the regulatory law by increasing the probability that unfair competitors will be brought to book. There are obvious drawbacks of allowing private enforcement – the pos- sibility of excessive litigation by powerful companies, and the fact that private enforcers cannot be expected to defer to any broad public policies that might conflict with their own interests – but problems of this kind can be minimised by providing the public regulator with the power to take over and (if appropri- ate) drop any private action that is not thought to be in the public interest. 42 Public regulators may also be expected to pursue some cases in which the incen- tives to pursue a private action are weak – eg where only small companies are affected, or where the loss inflicted on each individual or company is too modest to justify the expense of prosecuting. The many questions of principle raised by such arrangements cannot be pursued here. These mutations of legal form demonstrate that the functional distinction between criminal law and various fields of civil law is less sharp than doctrine, or at least common assumptions, would sometimes have it. And yet the tendency to blur, and the proliferation of hybrids, 43 does not obscure some key differences between criminal and civil liability. The distinction between public and private enforcement remains dominant, although it is certainly not absolute and we have noted various examples (right of private prosecution; civil actions by local authorities; combined public and private enforcement of competition laws) of erosion. The element of public censure remains a central feature of criminal lia- bility, echoed in many social and professional spheres by the tendency to place significance on criminal convictions but not even to inquire about civil judgments

(^40) Cf Ravnsborg v Sweden (1994) 18 EHRR 38, at 52–53 with the decisions in Schmautzer and in Garyfallou (above n 23). (^41) Cf K Roach and MJ Trebilcock, ‘Private Enforcement of Competition Laws’ (1997) 34 Osgoode Hall Law Journal 461. (^42) Roach and Trebilcock, ibid, at 489 and 503. (^43) One further example is the range of civil disqualifications that a criminal court is empowered to make on conviction, some of which are unrelated to any risk disclosed by the conviction and are therefore difficult to justify. For analysis, see A von Hirsch and M Wasik, ‘Civil Disqualifications Attending Conviction: a Suggested Conceptual Framework’ [1997] CLJ 599.

12 Is the Criminal Law a Lost Cause?

against a person; yet, again, this is not an absolute distinction, since there are many criminal offences (especially strict liability crimes) that carry such low pen- alties and low stigma as to have no greater social or professional significance than an injunction or award of damages. Despite this general significance of censure and punishment, it is sometimes suggested that civil actions can be more apposite and further-reaching, particu- larly when the unlawful activity is of an ongoing nature. We noted, in the field of intellectual property law, the view that the criminal law may need to be supple- mented (or even supplanted) by a civil action in order to deal adequately with continuing wrongdoing.^44 However, there are two issues that must not be over- looked. First, although the criminal law is rarely able to enforce significant posi- tive obligations (other than those required by the terms of a community sentence), it can deal with continuing unlawfulness by means of negative obligations. The criminal courts have a range of conditional sentences available to them in many cases (not merely the conditional discharge, but also probation orders, commun- ity service orders and all the other forms of community sentence), and the com- mission of a further offence during the operational period of a conditional order may give the court the power to revoke the conditional order and to pass sentence for the two offences together. This may amount to a powerful sanction. Secondly, if the criminal law is not thought to provide adequate protection, then there must be vigilance about the consequences of any blurring of legal forms. Where a civil law mechanism is adopted, the key issue is what happens if the injunction or other restraining order is breached. The general answer is that this amounts to a civil contempt of court, for which a judge may make various orders including imprisonment of up to two years. 45 Anyone sentenced to prison for contempt is classified as a civil prisoner, but nonetheless the deprivation of liberty and the hardships of prison life are present. The European Court of Human Rights would doubtless insist that all the Article 6 safeguards should be maintained, and in most respects this is now true of contempt proceedings. 46 The present government relies on what might be termed ‘the contempt model’ in order to justify the anti-social behaviour order introduced by section 1 of the Crime and Disorder Act 1998. One of the reasons for adopting this hybrid approach was said to be the inability of the criminal law alone to deal ade- quately with continuing wrongdoing. 47 However, as we saw earlier, breach of the civil order constitutes a criminal offence, of strict liability, carrying a maxi-

(^44) There is a growing number of orders that criminal courts can make (eg forfeiture, confiscation, deprivation of property) which may have the effect of depriving an offender of the means of repeat- ing the offence; but there is no criminal injunction as such. (^45) Arlidge, Eady and Smith on Contempt (3rd edn, 2011), Ch 3. (^46) Ibid, Chs 2 and 3. (^47) See the two papers issued by the Labour Party in opposition, A Quiet Life (July 1995) and Protecting our Communities (September 1996), and then the Consultation Paper on Community Safety Orders (Home Office, 1997). Critiques of the proposals may be found in two short papers by A Ashworth, J Gardner, R Morgan, ATH Smith, A von Hirsch and M Wasik, ‘Overtaking on the Right’ (1995) 145 NLJ 933 and ‘Neighbouring on the Oppressive’ (1998) 16 Criminal Justice (1)7.

14 Is the Criminal Law a Lost Cause?

‘6.2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 6.3 Everyone charged with a criminal offence has the following minimum rights: a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as wit- nesses against him; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court’.

There is a considerable and growing ECHR jurisprudence on these provisions, which cannot be discussed here. 51 More pertinent is the international recogni- tion, also found in the International Covenant on Civil and Political Rights, 52 that defendants in criminal proceedings ought to have greater protections because of what is at stake. The protections in Article 6 of the ECHR are expressed to be ‘minimum rights’, but, even at that, requirements such as free legal aid, the right of confrontation and the burden of proof may make a con- siderable difference to the balance of power between the parties in criminal cases. In part 3 of the chapter we discussed the different functions of different branches of the law, noting the tendency to mix civil and criminal, and punitive and compensatory, responses to wrongdoing. However, we had concluded in part 2 that the definition of a criminal offence is likely to emphasise the role of a public authority in bringing proceedings, and the possibility of a (punitive) sentence. The justification for recognising defendants’ rights, as embodied in the European Convention, is that significant restrictions on, or deprivation of, liberty may well flow from criminal proceedings, and also that a public author- ity is bringing the case (with the consequent probability of power and resources far greater than those of an individual defendant). Thus it is contrary to the European Convention on Human Rights for the legislature to label proceedings as civil when the statute provides that, in cases of willful default on the court’s order, a person may be committed to prison for up to three months. 53 If the

(^51) See Emmerson, Ashworth and Macdonald, n 7 above. (^52) Notably Article 14: see further DJ Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (1995). (^53) Thus in Benham v United Kingdom (1996) 22 EHRR 293, where the English legislation pro- vided for this response to non-payment of the community charge or ‘poll tax’, the European Court of Human Rights held that the proceedings were in substance criminal, and that therefore the defendant should have been entitled to legal aid and the other safeguards set out in Article 6.

The Seriousness of Wrongdoing 15

proceedings involve censure and punishment, then the rights of a person ‘charged with a criminal offence’ should be protected. 54 This argument is even more compelling where the maximum penalty is as high as five years’ imprisonment, as for the offence of breaching an anti-social behaviour order. 55 But it is not merely that the hybrid procedure for anti-social behaviour orders is designed to avoid – at the crucial stage of taking evidence and deciding the terms of the order – the safeguards applicable on criminal charges. It is also that the offence which carries five years’ imprisonment has its terms decided by a magistrates’ court sitting as a civil court, 56 and that it is one of strict liability. It is committed by a person who ‘does anything which he is prohibited from doing by an anti-social behaviour order’. No fault is required, and the only specific defence is ‘without reasonable excuse’. It is strongly argu- able that persons should not be liable to be deprived of their liberty without proof of fault. 57 Imprisonment is the most severe penalty available in most legal systems, and to condemn an individual to prison without requiring proof of fault – or, at least, without allowing the defendant to establish lack of fault 58 – is a negation of the respect for individual autonomy that ought to be a founda- tional principle of the criminal law. To provide for up to five years’ imprison- ment for a strict liability crime is wrong in principle. 59

1.5 THE SERIOUSNESS OF WRONGDOING

We have already accepted the proposition that neither English law nor the laws of many other countries confine criminal liability to noticeably serious miscon- duct. Legions of strict liability offences, for example, penalise relatively minor omissions or wrongful acts. But a core element of criminal law, from a norma- tive point of view, is that the criminal sanction should be reserved for substan- tial wrongdoing. And this prompts questions about how the seriousness of wrongdoing should be assessed.

(^54) Thus in Benham v United Kingdom the Government’s argument was that ‘the purpose of the detention was to coerce the applicant into paying the tax owed, rather than to punish him for not having paid it’; but the Court emphasised that ‘the applicant faced a relatively severe maximum penalty of three months’ imprisonment’, and that ‘where deprivation of liberty is at stake, the inter- ests of justice in principle call for legal representation’ and other safeguards: 22 EHRR 293, at paras 55–61. (^55) See nn 47–49 above and text thereat. (^56) By s 1(4) of the Crime and Disorder Act 1998 the court may make an order ‘which prohibits the defendant from doing anything described in the order’ (not necessarily acts of the kind already alleged), and s 1(6) provides that the prohibitions should be ‘necessary for the purpose of protecting [persons] from further anti-social acts by the defendant’. (^57) See Chapter 4 below. (^58) This is the approach taken by the Supreme Court of Canada in R v City of Sault Ste Marie [1978] 2 SCR 1299, (1978) 40 CCC (2d) 353, affirmed under the Charter of Rights and Freedoms in Reference re section 94(2) of the Motor Vehicle Act (BC) [1985] 2 SCR 486, (1985) 48 CR (3d) 289. (^59) The Privy Council, however, went so far as to approve strict liability for a crime carrying three years’ imprisonment in Gammon v Attorney-General for Hong Kong [1985] AC 1

The Seriousness of Wrongdoing 17

argument. 63 I accept that there are well-documented differences, over time and between nations at any given point in time, in judgements of whether conduct amounts to a serious wrong or not. I also accept that, even in one country at a particular point in time, there will be no bright line, no categorical difference, that divides serious from non-serious wrongs. I accept further that there will inevitably be some measure of self-reference in whatever criteria are adopted: the wrongs must be serious enough to be condemned and sanctioned by the criminal law.^64 But these are not disabling weaknesses in my approach. For one thing, it is surely possible to identify some clearly substantial and some clearly non-serious wrongs, to which my approach applies without further difficulty. One can then move, assisted by a mixture of human rights principles, 65 applied philosophy and pragmatism,^66 to close the gap between the two extremes. The fact that there is room for argument in the middle-ground is not a fatal flaw – after all, it is a com- mon feature of human affairs and policy-making – so long as the debates to resolve the question are principled, drawing on the kinds of reasons elaborated on here. One can make some headway by demanding internal consistency in the evaluation and treatment of factors relevant to seriousness. Given the programmatic purpose of this chapter, there will be no detailed analysis of possible approaches to gauging the seriousness of wrongs. In respect of wrongs against individuals, the scheme sketched by von Hirsch and Jareborg may be commended as a starting point for analysis. 67 They develop a method for assessing the effect of the typical case of particular crimes upon the ‘living standard’ of typical victims, construing ‘living standard’ as a measure of the means and capabilities that would ordinarily conduce to the achievement of a good life. However, a method must also be developed so as to take account of set-backs to collective interests, 68 and of the public dimension of wrongs inflicted on individuals. The problem of identifying this public dimension has

(^63) Note the different methodology of M Moore, Placing Blame: A Theory of the Criminal Law (1997), Ch 1, for whom the essence of criminal liability is retribution for moral wrongs and who then excludes non-serious wrongs by the application of restraining (mostly, consequentialist) con- siderations. (^64) In parts 1.7 and 1.8, below, this principle is sharpened through its connection with the grounds of criminal liability and appropriate levels of sentence. (^65) Briefly, (i) the European Convention on Human Rights does not often require the creation of criminal offences, but cf the state’s duty to protect citizens from violations of their right to life (Article 2, and McCann v United Kingdom (1996) 21 EHRR 97), their right not to be subjected to inhuman and degrading punishment (Article 3, and A v United Kingdom (1999) 27 EHRR 611), and their right to respect for their private life, in terms of sexual molestation (Article 8, and X and Y v Netherlands (1985) 8 EHRR 235); but (ii) the Convention does generate some strong arguments against criminalising conduct that interferes with the rights of citizens, such as the right not to be discriminated against in sexual offences (Articles 8 and 14, and Sutherland v United Kingdom (1997) 24 EHRR CD 22) and the right to freedom of expression and assembly (Articles 10 and 11, and Steel v United Kingdom (1999) 28 EHRR 603). (^66) See n 67 below. (^67) A von Hirsch and N Jareborg, ‘Gauging Criminal Harm: a Living Standard Analysis’ (1991) 11 OJLS 1, discussed by A Ashworth, Sentencing and Criminal Justice (2nd edn, 1995), Ch 4.3. (^68) See N Lacey, State Punishment: Political Princiles and Community Values (1988), Ch 8.

18 Is the Criminal Law a Lost Cause?

been tackled by Marshall and Duff, 69 who point out that it is not sufficient to say that crimes against individuals (such as homicide, rape and theft) are penal- ised because they threaten the social order, or some similar phrase, because that diminishes the significance of the victimisation of the individual that is clearly central to the offence. On the other hand, they argue, it is not sufficient to rely merely on the state’s duty to ensure protection of these rights of individuals, because that could be achieved by civil law methods or by providing public assistance for private prosecutions. Their argument is that crimes are public wrongs because even those that consist of attacks on the body or property of an individual might be seen as ‘wrongs against the community to which the indi- vidual belongs’, wrongs that are shared by other members of the community with which the victim is identified and by which her or his identity is partly constituted. 70 Now it will be readily apparent that this approach to the public element in crimes draws no bright lines between conduct that should be crimi- nalised and conduct that should not. Nor should it be taken to suggest that wrongs that are merely torts (and not crimes) have no public dimension, or indeed that wrongs which have a substantial community element ought to be treated (for that reason alone) as crimes rather than as aspects of a regulatory scheme. The point is that assessments of the seriousness of wrongs ought to take proper account of this wider community element, even in respect of crimes with individual victims. Turning to the regulatory sphere, 71 we find differences in wrongs and sanc- tions that call for re-assessment in the light of broader principles. We have noted that some regulatory bodies are given powers to levy substantial penalties on relevant companies or individuals for breaches of regulations that do not qual- ify as criminal. 72 On the other hand, some statutes that are chiefly regulatory create criminal offences with substantial criminal penalties – for example, dis- posing of ‘special waste’ outside the conditions of a licence has a maximum penalty of five years’ imprisonment, 73 and making a misleading statement in relation to investment business has a maximum of seven years’ imprisonment. 74 The interests and values protected by these offences need to be assessed in rela- tion to those protected by the ‘normal’ crimes of theft, making off without pay- ment, and so forth. The creation of offences with such substantial maximum penalties might be taken to suggest that criminal policy-makers are, on occa- sions, capable of transcending traditional categories and modes of thought so

(^69) SE Marshall and RA Duff, ‘Criminalization and Sharing Wrongs’ (1998) XI Canadian Journal of Law and Jurisprudence 7. (^70) Marshall and Duff, ibid - ,at 21; see also 13, ‘to believe that a certain kind of conduct should be criminal is to believe, at least, that it is conduct that should be declared wrong by the community; that it is a matter on which the community should take a shared and public view, and claim norma- tive authority over its members’. (^71) The broad meaning given to the term ‘regulatory’ (n 12 above) should be recalled. (^72) See, eg the powers of the Occupational Pensions Regulatory Authority, n 25 above. (^73) Environmental Protection Act 1990, s 33. (^74) Financial Services Act 1986, s 47.