Harm as the basis for Criminalising Conduct

Structure

1. Harm to Others - Simple Meaning

2. Extended Meaning of Harm - Harm to self and

3. Harm to society

Paragraph 1 - Harm to others

Basic Meaning

Basic meaning of harm is ‘harm to others’ such as personal injury/death, which includes physical and psychiatric injury.

This can be prosecute under OAPA 1861 & via the common law offence of murder. harm in relation to other’s property is regulated in our criminal laws under the Theft Act 1968 & the law on criminal damage. Harm can also include self-harm and harm to society.

Structure

1. Harm to Others - Simple Meaning

2. Extended Meaning of Harm - Harm to self and

3. Harm to society

Paragraph 1 - Harm to others

Basic Meaning

Basic meaning of harm is ‘harm to others’ such as personal injury/death, which includes physical and psychiatric injury.

This can be prosecute under OAPA 1861 & via the common law offence of murder. harm in relation to other’s property is regulated in our criminal laws under the Theft Act 1968 & the law on criminal damage. Harm can also include self-harm and harm to society.

Paragraph 2 - Autonomy - how & when can personal freedom be limited

Mills “On Liberty”, argues that the only restriction on personal freedom that is justifiable is when prevents harm to other. Therefore criminal laws on murder, NFOAP & theft etc. are all justifiable.

Whereas laws restricting personal freedoms e.g. assisted suicide, restrictions on alcohol & drugs for personal use are not justifiable.
If an individual wants to harm themselves, then they have the right to do so and this should not be criminalised.

Paragraph 3 - Extended meaning of harm to self

Hart’s theory of positivism states that laws are valid irrespective of their moral content. He agreed with Mill but developed this as as also justifying restricting personal freedom in relation to self-harm (paternalism) to some extent.

Hart would favour smoking or alcohol restrictions on the basis that the function of the law is to prevent harm to others & oneself.

Hart would see self-harm, including substance abuse & addiction as something in which criminal law should intervene.

Paragraph 4 - Extended meaning of harm to society

Lord Devlin proposed an approach based on legal moralism. This allows behaviour to be criminalised to prevent harm to society i.e. conduct is criminal if it is morally wrong so that it harms the fabric of society.

In (R v Brown), no Vs complained about the infliction of harm in sex. They were still convicted of s.47 & s.20 offences as the majority in the HL considered that consenting adults in private could not lawfully consent to harm as this would be a threat to the moral fabric of society.

In theft case of (Hinks), even where consent without deception to appropriation was considered morally wrong & therefore dishonest. However, problems arise where there is no consensus on the morals in question and is reflected by split decisions in the appear courts & conflicting judgements, as in (R v Wilson) where a married couple successfully used defence of consent to harm caused during sex within a