Oxbridge Notes | Crime And The Criminal Process - LAWS1021

What is a crime? (Crimes Act 1900 (NSW); Summary Offences Act 1988 (NSW))
- Nature and characteristics of crime
- What kinds of acts are caught up in criminal law?
- Mala in se “wrong in itself”
  - Murder
  - Theft
  - Rape
  - Assault
- Mala Prohibita “wrong because its prohibited”
  - Speeding
  - Public order
Introduction to criminalisation
- Issue of criminalisation interrogates the principle, motivation and forces behind decisions to characterise certain forms of behaviour as criminal
- Influential stream of normative scholarship
- Overcriminalisation
  - Notion of common-sense
  - Penal popularism
  - Rather than timeless, historically specific
  - Issue of language and metaphor in crime discussions Andres Ashworth – “is the criminal law a lost cause?”
    - Examine various approaches to providing normative accounts
- Normative theory of criminal law
  - A theory, principle or set of criteria which determine appropriate limits to criminal law
  - Specification of what behaviour are appropriately criminalised
- Historical
  - Historical context
  - 18^th century England – peasantry and common land taken as private property
  - ATSI people colonial and post-colonial criminal law
- Decisions to criminalise
  - Harm
  - Risk
  - Morality
  - Offensiveness
  - Social reaction
  - Moral panic
  - Social class
Criminalisation and penalty – contextualising criminal law
- Nicola Lacey in The Oxford Handbook of Criminology
  - Criminalisation constitutes an appropriate conceptual framework which to gather together the constellation of social practices which for subject matter of criminal law
  - Escaping the notion of crimes as given
  - Criminalisation captures the dynamic nature of the field as a set of interlocking practices in which the moments of defining and responding to crime can rarely be completely distinguished
- Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions
  - Criminalisation does not just require an analysis of the desirable justifications and elements that should structure existing, new or amended substantive offences
  - Involves examination of police powers
    - Entwined with substantiative offences
  - Police and prosecutors have developed their own versions of what enforceable law is
  - Exercise discretions
  - Descriptive vs normative vs context
    - D Describes what the crime is
    - NScoping what the harm is
    - C Who is being charged and tried
- Stanley Cohen – Against Criminology
  - “How do certain elements of social life come into orbit of the criminal law?”
  - Two opposing tendencies – how the category of crime becomes accepted and how criminalisation becomes questioned and even reversed
  - New criminalisation the virtual disappearance of decriminalisation from the agenda, and along with it any attempt to take a critical stance towards the concept of crime
  - Classic jurisprudence dichotomy
    - Shopping list metaphor
  - Criminalisation is a particular reaction to a defined social problem
  - Under what conditions do certain people feel state intervention is justified?
    - Social class?
  - What factors affect the process of criminalisation?
    - Social class?
- Morris and Hawkins – The Honest Politicians Guide to Crime Control
  - Concerns overreach of the criminal law
  - Pragmatic issues concerning the cost of criminalisation in areas like drugs and prostitution
  - Overcriminalisation was common
  - Overreaching beyond the purpose of protecting persons and property by pursuing moralistic excrescences
- Husak – overcriminalisation: the limits of the criminal law
  - He calls it overcriminalisation
  - The extraordinary rise in the size and scope of the criminal law
- Nils Christies
  - “Crime does not exist. It is created. First there are acts. Then follows a long process that gives meaning to those acts”
Common-sense: the case of murder
- The common-sense approach to what a crime is, is that everyone knows a crime when they see one
- The simplicity of this theory is deceptive
- Law and order common sense
  - Hoog and Brown – rethinking law and order
    - Identify key assumptions and themes
      - Soaring crime rates
      - It is worse than ever – law and order nostalgia
      - The future is New York or la
      - The criminal justice system is soft on crime and does not protect citizens
      - The solution is more police with more powers
      - We need tougher penalties victims should be able to get revenge through he courts
Social class and criminalisation
- Does social class influence which activities will be criminalised?
  - Respectable people vs criminal class
  - Alan Bond? James Hardie Directors? HSBS?
    - Alan Bond – one day for every one million where as people who take a 1$ loaf of bread get years
    - James Hardie – asbestos, no one has been prosecuted
    - HSBC – millions of dollars for the drug cartel
- Russel Hogg – populism, law and order and the crimes of the 1%
  - Two laws: crimes against the market vs crime of the market
  - Crime of the GFC
- Misconduct in the banking, superannuation and financial services industry
- Robo-debt scandal
  - Who cause greater harm
Penal Populism
- Pratt – sorcerer’s apprentice revised – toasting the marshmallow
  - Analogy – when the apprentice gets the broomsticks to do the work and he gets too many and he can’t control is because it becomes overrun with power
  - Is compared to politicians who make too many promises and lose control of their power

HARM
- Criminal action is harmful
- Therefore, only harmful acts should be criminal?
- Harm has immediate plausibility as a justification for criminalising a given form of behaviour
- A common-sense ring to it
- But what does it mean to cause harm?
- Should all form of harmful behaviour be criminalised?
- JS Mill – “ON LIBERTY” - Harm principle
  - Limits the legitimate scope of the criminal law
  - You can do whatever you like, as long as it doesn’t harm others – criminal law is to prevent harm to others
  - Considers the effect on other people and community
  - Criminal law should not encroach on your autonomy – as long as you are not causing harm to others
  - The government should not be able to tell you what to do
  - Refutes:
    - Feinberg (1987) resists Mills harm principle as “it is always a good reason to support of penal legislation that it would be effective in preventing harm to persons other than the actor… and there is no means that is equally effective at no greater cost to other values”
      - Harm is a setback of interests
    - Duff (2007) this leaves open the possibility that there are also other good reasons – such as the prevention of a serious offence that does not amount to harm or of paternally motivated coercive infringements of others’ freedom that invade autonomy even if they are not on balance harmful, or even of free floating evils that neither harm nor offend.
      - All versions of harm face the same problem – the problem, to put it crudely, that they can avoid the defect of under-inclusiveness
      - The harm principle ceases to set sustainable independent constraints on the scope of the criminal law
    - Harcourt (1999) the harm principle is effectively collapsing under the weight of its own success. Claims of harm have become pervasive that the harm principle has become meaningless. Too many exceptions.
RISK
- Risk and risk preventions have become major preoccupations of individuals, government, media, and the state
- We have become a risk society (Beck, 1992)
- Proliferation of notions and mentalities of risk and the ubiquity of risk instruments and risk management preventative justice
  - This becomes an issue for the rule of law and presumption of innocence
- Currently criminal law attempts to clean up the mess – what of it stopped the mess before it happens…
- For the harm principle, an act of preparation is not causing harm to anybody YET so within that theory, it cannot be charged
- Ashworth, Sedner, Tomlin – Prevention and the limits of criminal law
  - Redress the lack of debate over the limits of preventative justice for, “the challenges posed by preventative justice are not to be found of the fringes of legal or political theory but rather go to the very core of the role of the state and the proper concretion of the citizen”
  - Various manifestation of the encroachment of preventative justice, for example in pretrial detention/ bail:
    - Police power that remove...

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