CCP notes

what is criminalisation

• “the process of identifying an act deemed dangerous to the dominant social order and designating it as criminally punishable” (Cohen)

• creating new forms of crime and therefore increasing the amount of crime and raising consciousness about these acts means more reported and therefore more criminals

what does Husak say about criminalisation

• too much punishment is produced

• potential lawbreakers are not receiving notice of their legal obligations or that they might be breaking the law, meaning the law is no longer guiding behaviour

• language of criminal offences can be confusing and due to the increase in offences, a person is unable to know what constitutes a crime

• resources exhausted

• a lack of respect for the law comes from over criminalisation

what is penal populism

• comes out of a fear that modern society is changing in ways that are threatening and unwanted by many

• people insisting that they have a say and giving their support to populist organisations who seem to be speaking for them and offering simple solutions to crime

• expectations are almost always disappointed

• example is victims of crime such as r*pe who are told they will get justice, but then have to continue reliving the experience and get no closure

mala prohibita

things we are told are wrong but we do not necessarily believe they are wrong, not a morally bad thing. Example is traffic offences or jaywalking

mala in se

as a society we generally agree it is bad to do these things. example is murder or assault

what does Ashworth say about criminalisation

• principled core of criminal law

  • the principle that the criminal law should only be used to censure persons for substantial wrongdoing (only crimes of social importance)

  • the principle that criminal laws should be enforced with respect for equal treatment and proportionality (enforcement authorities and their policies to be reorganised to reflect the relative seriousness of wrongdoing)

  • the principle that persons accused of substantial wrongdoing ought to be afforded the protections appropriate to those charged with criminal offences

  • the principle that maximum sentences and effective sentence levels should be proportionate to the seriousness of the wrongdoing

• regards the criminal law as a lost cause

what does Duff say about criminalisation

• developed a “communicative” or “relational” theory of criminal responsibility

• accused is required to give an account of their actions if they are to escape responsibility, based on the idea that the criminal hearing or trial is a moral communication between citizens

• defendant is treated as a full moral agent answerable for their conduct

• question of if penal justice is possible in contexts of political and social injustice as the defendant can argue that the polity has no right to call them to account for their wrongs

• failure to treat a person with respect makes society lose the moral standing to call a person to account

what does Husak say about criminalisation

• identifies two categories of restraints designed to limit the authority of the state to enact penal offences

  • external - state must have a substantial interest in whatever objective the statute is designed to achieve, must also be no more extensive than necessary to achieve its purpose

  • internal - derived from the criminal law itself, penal liability is unjustified unless it is imposed for an offence designed to prescribe a nontrivial harm or evil unless the defendants conduct is wrongful

• potential offenders are not aware of how the majority of statutes pertain to their conduct

• creation of offences is only justified if they are designed to reduce a substantial risk

what does Duff say in “the realm of criminal law”

• says that overcriminalisation exhausts resources and exposes too many people to the prospect of prosecution and punishment for contact that does not warrant such a response

• criminalisation gives too much discretion to police

• criminal law is unprincipled

what is particularism

• a phenomenon in the drafting of offences where the particular wording of offences provides the definitional detail that merely exemplifies rather than delimits wrongdoing

• example is rock-throwing, which was criminalised after a number of high-profile incidents and a new offence was deemed needed to ensure that there was “now a full suite of charge options available to the police

  • were already offences that covered the action of throwing rocks

what do normative theorists intend to do

• ask what ought to be criminal

• obtain a more principled approach to the criminal law that is internally consistent for which acts are criminalised and which are not

what commonalities are between the normative theorists

• some moral elements

• criminals themselves should be afforded moral protections

• criminal law should not be the default, it should be the last resort

• proportionality - punishment should directly relate to the extent of the harm

• avoiding excess punishment

• anything that is not serious enough to be sentenced for likely should not be a matter for the criminal law

what are Husak’s four principles

1. substantial risk requirement

2. prevention requirement

3. consummate harm requirement

4. culpability requirement

actus reus

refers to the prohibited event contained in the definition of an offence

mens rea

• the accompanying fault elements