Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 12 September 2011

On over-criminalisation

For many years criminal law theory was obsessed with the questions of punishment and responsibility: how could punishment be justified, what were the conditions under which a person might be responsible for their actions, and how this conception of responsibility might structure the criminal law. More recently, however, interest has turned to the question of criminalisation: specifically, what can legitimately be criminalised and why? This is, in other words, a turn to the content of the criminal law. This has been prompted, it seems, by fears over the increasing over-reach of the state, or the use of legislation creating criminal offences as a panacea for all evils - and in this context it is often noted that over 3,000 new offences have been createthey the UK parliament since 1997. Nor is Scotland immune from this development, as a new parliament means new offences. It is hard to put a precise figure on the number of new offences created, but most estimates suggest that the decade since 2000 saw several hundred offences created by the Scottish parliament.
New parliament, new crimes?

But does this amount to 'over-criminalisation', as some have contended? Well it depends on your measure, and this is where things get notoriously hard to judge. Having lots of offences on the books might looks bad, but if few are actually enforced, then this seems more like a problem of bad legislation or an over-active parliament than over-criminalisation. By the same token, it is conceivable to have a system consisting of a single offence so brouad (do no wrong!) that it could could be enforced in a draconian manner. So should we measure by the number of offences or something else, like the number of people prosecuted in any given year, or these actually convicted? And even then would there be a problem if punishments were minor and treated as such by members of society? Such questions go to the heart of theoretical issues about the criminal law. I cannot begin to answer them all here, but against the grain of much recent discussion of these issues, which focuses on the nature of wrongs and wrongdoing, I want to suggest that a crucial factor in making such judgements must be an understanding of the function of the modern criminal law. In one of his final publications, Neil MacCormick wrote that the criminal law should "contribute to securing the conditions of civility and social peace, thus sustaining civil society". That is a lot to ask, but if it is not too much to ask, then we may find that we do not have too much criminal law.

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