Justice denied: The criminal law and the ouster of the courts

Oxford Journal of Legal Studies

Volumn 30, Issue 4, 2010, Pages 725-748

  Edwards, James ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78649850275     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqq025     Document Type: Article

References (75)

1. Lord Woolf, 'The Rule of Law and a Change in Constitution' (Squire Centenary Lecture, Cambridge 2004) accessed 30 June 2009.
2. For discussion of the saga, see R Rawlings, 'Review, Revenge and Retreat' (2005) 68 MLR 378-410.
3. See H Woolf, 'Droit Public-English Style' [1995] PL 56-71.
4. This is an oft-made claim: see eg HLA Hart, The Concept of Law (2nd edn OUP, Oxford 1994) 27.
5. A Ashworth, 'Conceptions of Overcriminalisation' (2008) 5 Ohio State J Crim L 407-25.
6. At this point, it may be objected that only that part of the offence to which there is no defence is marked out in the manner described. Those troubled by this point should read my discussion as referring only to those cases where no defence is available.
7. Of course, the offence's ex post role is actually more complex. The offence is likely to be only part of a larger decision-rule which officials use to guide their responses to offending behaviour. I cannot discuss this further here.
8. For just one endorsement, see A Duff, 'Theories of Criminal Law' The Stanford Encyclopedia of Philosophy (Edward N Zalta (ed), Fall Edn 2008), accessed 30 December 2009.
9. By 'offence-creator' I mean to refer to those responsible for crafting the offence-definition by deciding which elements to include and in what form. In most cases, this is principally the job of government officials and their agents.
10. Legislators, on whose say-so the legal validity of the offence depends, play a subsidiary role, making such amendments to a pre-existing offence-definition as time and support permit.
11. As will be clear from my describing the input wrong as murder, an output wrong which captures this input wrong will be one which provides for the acquittal of justified or excused killers, normally by granting defences in such cases.
12. This means that for my purposes an output wrong still captures the input wrong as long as the defendant is legally entitled to raise points nullifying input wrongdoing. In short, I am not concerned to attack reverse onus clauses in this essay.
13. Why is the input wrong captured only 'roughly'? Because the two roles the offence plays (guide and standard of evaluation) do not always wax and wane together.
14. Not all salient evaluative dimensions can feature in the offence-definition if it is to be a serviceable guide for the man on the street, or for the various officials who need to make decisions about violation.
15. A serviceable guide must be relatively simple, while the evaluative complexities embedded in human behaviour are legion.
16. One might argue that if offence-creators are to bring about this type of change in the purposes of criminal prohibition, they should make the change transparent and not conceal it within legislative language which implies business as usual. I will not pursue this objection here.
17. Antony Duff has suggested that such an output wrong might also be justified on the grounds that all those who carry knives display the vice of civic arrogance: by assuming they can safely carry a knife, each knife-carrier 'arrogantly claims the right to decide for himself on matters which he, like the rest of us, should not trust himself to decide'.
18. Even if carriage is actually safe, such arrogant conduct is wrongful, and the appropriate object of punishment. Whether or not this argument is sound, it does not apply to the cases I am concerned with here.
19. As the following paragraphs explain, ouster offences do not capture conduct because the conduct is thought wrongful. In fact, the offence-creator may well want some of the captured conduct to continue.
20. For Duff's discussion, see A Duff, 'Crime, Prohibition, and Punishment' (2002) 19 J Appl Philos 97-108.
21. Victor Tadros, fastening onto the fact that the intent of offence-creators is sometimes not that people refrain from the prohibited behaviour, calls such offences 'intentionally non-ideal'.
22. Tadros' idea is that even in an ideal world, the offence-creator intends that people carry on acting in the prohibited manner.
23. While I have gained much from Tadros' discussion, I think his terminology is somewhat unhelpful. The ideal/non-ideal contrast assumes a picture in which the ideal scenario is perfect compliance with the prohibition on its face.
24. Yet the troubling aspect of these offences is precisely that this ideal for law-makers is being challenged-the ideal is now that offences serve as efficient facilitation devices, not as standards of behaviour. It is one of the many problems with this new ideal that I am interested in tackling here.
25. For Tadros's treatment, see V Tadros, 'Crimes and Security' (2008) 71 MLR 940-70.
26. Terrorism Act 2006 s 1(3).
27. As alleged by several MPs: see G Hurst, 'Terror Bill Rebels cut Labour's Majority to One Vote' The Times (London 3 November 2005) accessed 9 October 2009.
28. C Clarke, 'Terrorism Bill, the Government's Approach' (Speech to the House of Commons on 5 December 2005) accessed 12 December 2009.
29. Joint Committee on Human Rights, Third Report of Session 2005-6, Counter-Terrorism Policy and Human Rights: Terrorism Bill and Related Matters (2005-06 HC 561-I) 17-18.
30. It is worth noting that my objection here is not the standard one, namely that such broadly drawn offences give petty officials excessive discretion to choose who to pursue, increasing their power to carry through vendettas against those they despise. This is a good objection. It is just not the objection I press here.
31. The government's command paper concedes these points when it states that 'it is recognized that much sexual activity involving children under the age of consent might be consensual and experimental and that, in such cases, the intervention of the criminal law may not be appropriate'.
32. On the other hand 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.'.
33. Secretary of State for the Home Department, Protecting the Public: Strengthening Protection Against Sex Offenders and Reforming the Law on Sexual Offences (CM 5668, 2002) [52].
34. Really taken, that is, by those responsible for creating the offence and, in many cases, by those enforcing it on the streets. Of course, judges may well believe that committing an offence itself justifies their convicting the offender.
35. This is a function of their role in the criminal justice system. But my primary concern, here and throughout, is with the mindset of the creators of offences, who, in the cases with which I am concerned, believe that only input wrongdoing (and not commission of the output wrong) justifies conviction.
36. It is their decision to create offences of this type which I am concerned to attack, not the decision of judges to convict pursuant to them.
37. One may reply that courts can consider input wrongdoing (or lack thereof) at the sentencing stage, such that the ouster I have discussed makes little difference.
38. This reply is weak. First, to the extent that criminal conviction is itself of moral significance this consideration comes too late.
39. Second, courts are still likely to impose sentences in cases where the output wrong is proved at trial, but where the input wrong could not have been proved had it been part of the offence.
40. This could not have happened were the offence not an ouster. Third, and relatedly, many of the procedural protections which attend proof of the offence are absent at the sentencing stage.
41. The value of these is not insignificant, and is discussed in greater detail below.
42. Again, it is not the courts' perspective, but that of offence-creators and law-enforcers in which I am interested when I talk of 'real' explanations and justifications. I will assume from now on that this point is clear.
43. J Rawls, A Theory of Justice (rev edn OUP, Oxford 1999) 7.
44. HLA Hart, Punishment and Responsibility (2nd edn OUP, Oxford 2008) 21.
45. As well as Rawls and Hart, this account of justice draws inspiration from the account provided by John Gardner.
46. See J Gardner, 'The Virtue of Justice and the Character of Law' (2000) 53 CLP 1-30.
47. Rawls (n 23) 73-8.
48. I say 'may' because this is clearly not the place to add to the forest of literature discussing the doctrine of double effect and the act/omission distinction.
49. Gardner (n 25) 18-19.
50. Rawls (n 23) 74-5.
51. For discussion of some of these values, see M Damaska, 'Truth in Adjudication' (1998) 49 Hastings L J 289-308.
52. Hart seems to disagree when he writes of one prosecuted under controversial laws that 'if he has broken such laws "voluntarily" (to use Professor Hall's expression), which in practice means that he was not in any of the excusing conditions, the requirements of justice are surely satisfied'.
53. See Hart (n 24) 37.
54. Here Hart suggests that voluntary violation of a rule suffices to make criminal punishment just, whatever the rule may be. This cannot be right.
55. To inflict criminal punishment pursuant to a rule prohibiting what was evidently innocuous conduct would be a paradigmatic injustice-it would be to impose harsh burdens on people who did nothing to justify such an imposition and would thus give the wrong people, the wrong things for the wrong reasons.
56. To repeat: I do not claim that the courts are at fault here, or make any claims about how they should act. My argument is directed to the designers and creators of ouster offences.
57. I claim that they should not create such offences because this makes the justice handed out by the criminal courts increasingly imperfect by the creators' own lights.
58. Is criminal punishment, even of the innocent, always inhumane? Does it, in other words, always amount to the (intentional) infliction of suffering on those who have done nothing to deserve it? Perhaps not-small fines or minimal community sentences may not cause any suffering at all.
59. But we should not be too sanguine about this. Even fines can cause great strain if one has difficulty paying, or finds oneself unable to pay, leading to a likely prison term.
60. Furthermore, the after-effects of any conviction may be painful, be it socially, professionally or psychologically.
61. For discussion of the virtue of humanity, see Gardner (n 25).
62. Mill held a view of this type.
63. See JS Mill, Utilitarianism (Parker, Son and Bourn, London 1863) ch 5.
64. For an argument that there is such a right, see D Husak, Overcriminalization (OUP, Oxford 2008) 93-101.
65. For an extended treatment of the idea that an 'account' is given by a defendant in a criminal trial, see A Duff and others (eds), The Trial on Trial, Vol 3: Towards a Normative Theory of the Criminal Trial (Hart Publishing, Oxford 2007).
66. Of course if the defendant pleads guilty, the account provided by the defendant will be minimal. However it is far from unintelligible to claim that this minimum is still a requirement of justice-that the defendant should still have to publicly accept blame and receive authoritative condemnation and punishment from the law.
67. Duff (n 36).
68. The idea that criminal conviction 'labels' offenders has become a popular one since being brought into mainstream criminal law theory by Andrew Ashworth.
69. For a recent statement see A Ashworth, Principles of Criminal Law (6th edn OUP, Oxford 2009) 78-80.
70. For Ashworth, to advocate fair labelling is to advocate offence-definitions which appropriately reflect the wrongdoing of the offender. As the text indicates my concern is related but distinct.
71. P Karlan, 'Two Concepts of Judicial Independence' (1999) 72 Southern California L Rev 535-58.
72. Woolmington v The Director of Public Prosecutions [1935] AC 462 (HL) 481.
73. J Gardner, Offences and Defences (OUP, Oxford 2007) 225.
74. On the connection between the Rule of Law and guidance, see J Raz, 'The Rule of Law and its Virtue' in The Authority of Law (OUP, Oxford 1977).
75. This provides one doctrinal reason why judges cannot, or at least will not, take what may appear to be an easy way out of the ouster offence problem and just read elements of the input wrong into the output wrong. It is, in many such cases, the clear legislative intent that this not be done.