Positive Obligations in Criminal Law

233 Pages·2013·1.156 MB·English

by  Andrew Ashworth

POSITIVE OBLIGATIONS IN CRIMINAL LAW
This book offers a set of essays, old and new, examining the positive obligations
of individuals and the state in matters of criminal law. The centrepiece is a new,
extended essay on the criminalisation of omissions – examining the duties to
act imposed on individuals and organisations by the criminal law, and assessing
their moral and social foundations. Alongside this is another new essay on the
state’s positive obligations to put in place criminal laws to protect certain indi-
vidual rights.
Introducing the volume is the author’s much-cited essay on criminalisation,
‘Is the Criminal Law a Lost Cause?’. The book sets out to shed new light on
contemporary arguments about the proper boundaries of the criminal law, not
least by exploring the justifications for imposing positive duties (reinforced by
the criminal law) on individuals and their relation to the positive obligations of
the state.

Positive Obligations in
Criminal Law
Andrew Ashworth
OXFORD AND PORTLAND, OREGON
2013
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Preface
Two types of positive obligation are explored in the essays that make up this
volume. First, there are positive obligations laid on individuals, companies and
other organisations by the criminal law. While the predominant form of crimi-
nal laws is the prohibition, most legal systems contain some offences of omis-
sion. The failure to fulfil a certain duty is criminalised, sometimes at common
law (eg misconduct is a public office; manslaughter by gross negligence), more
commonly by statute. Criminal liability for omissions is typically understood
by common lawyers to be ‘exceptional’ or ‘special,’ and one of the objectives of
this volume (in particular, Chapters 2 and 3) is to re-assess the justifications for,
and proper limits of, omissions offences.
The second type of positive obligation is one that rests upon the state. It will
be argued that the state is under various positive obligations in relation to crim-
inal liability, sometimes as a concomitant of the obligations imposed on sub-
jects. The State’s positive obligations include its (international) duty to have in
place laws that give adequate protection to the rights of subjects (Chapter 8),
not least to children (Chapter 7); and its duty of justice, which applies so as to
require the drafting of its criminal laws in a way that respects its subjects as
autonomous members of society and enables them to factor the law into their
practical deliberations (Chapters 4, 5 and 6); and this includes a particular duty
to publicise and communicate its criminal laws (Chapters 2 and 3).
The nine chapters below are designed to throw different shafts of light on these
various positive obligations. Chapter 1, ‘Is the Criminal Law a Lost Cause?’, is a
foundational essay on criminalisation, examining the relationship between the
criminal law and other forms of legal regulation. This chapter makes the case for a
principled approach to the decision to create a criminal offence, equality in its
enforcement, and proportionality in sentencing. As is soon evident in Chapter 2,
‘Criminalising Omissions’, the approach advocated in the first chapter has a partic-
ular resonance with omissions liability, in relation to which the decision to criminal-
ise is a little-discussed issue. The new essay that forms Chapter 2 aims to raise
normative questions about the basis for and extent of criminal liability for omis-
sions, paying special attention to the neglected issue of the appropriateness of rec-
ognising certain civic duties and reinforcing them with criminal offences. The
content of Chapter 3 is well captured by its title, ‘Ignorance of the Criminal Law,
and Duties to Avoid it’. As well as critically re-assessing the common law doctrine
that ignora nce of the criminal law is no excuse, the essay develops the argument that
citizens should have a duty to make reasonable efforts to know the criminal law, and
that this should be the concomitant of an obligation on the state to ensure that
criminal laws are duly publicised and communicated to all those in the country.
vi Preface
Chapter 4 asks, ‘Should Strict Criminal Liability be Removed from All
Imprisonable Offences?’ This essay examines the reasons why the state should
recognise an obligation to ensure that its criminal laws require fault as a condi-
tion of liability. It assesses the counter-arguments in favour of strict liability, but
then argues that where the deprivation of a person’s liberty is a potential sanc-
tion, strict liability has no place at all. Chapter 5 explores the connected issue of
justifying constructive criminal liability, under the title ‘A Change of Normative
Position: Determining the Contours of Culpability in Criminal Law’. The argu-
ment is that respect for the autonomy of citizens indicates that criminal liability
should in principle be based on intention, recklessness or knowledge, and more-
over that this subjective element should be linked to any consequence, result or
circumstances specified in the crime. Thus the essay attacks common arguments
in favour of even a moderate amount of constructive criminal liability, while
recognising that there is room for debate on the place of (gross) negligence as a
standard of criminal liability. In Chapter 6, on ‘The Unfairness of Risk-Based
Possession Offences’, it is argued the possession offences based on risk tend to
be inconsistent with core doctrines of the criminal law. This raises the question
of the justifications for criminalising risk-based possession of, for example, fire-
arms or other weapons. A key issue, discussed in this chapter, is the extent to
which there should be a positive obligation on citizens to safeguard potentially
dangerous objects and, if there is such an obligation, how seriously a failure to
carry it out should be treated.
In Chapter 7, on ‘Child Defendants and the Doctrines of the Criminal Law’,
the discussion turns to a sphere in which the state has clear positive obligations
under the UN Convention on the Rights of the Child. This chapter considers
what the criminal law should expect of young children, and what provisions
should be made in the criminal law to reflect the fact that, being under the age
of majority, children cannot properly be held to the same standards as adults.
Chapter 8 is a new essay which explores the nature and extent of the state’s
positive obligations under the European Convention on Human Rights to have
certain criminal laws in place. It conducts a critical examination of the develop-
ing jurisprudence of the European Court of Human Rights, in order to probe
its logic and its limits, and to assess the extent to which the United Kingdom can
expect to find that this is a further source of pressure to legislate on the criminal
law. Chapter 9 is a short Epilogue.
My academic acknowledgements in relation to each essay are printed below.
Here, it remains for me to record my deep thanks to Richard Hart and his team
for giving me the opportunity to publish with them, and for the smooth publica-
tion process. Finally, my warm thanks to Von for her support in this and other
academic endeavours: I am very fortunate.
All Souls College, University of Oxford
February 2013.
Acknowledgements
Chapter 1 is a revised version of my inaugural lecture as the 14th Vinerian
Professor of English Law in the University of Oxford, and was first published at
(2000) 116 Law Quarterly Review 225. I am grateful to the Editor, Francis
Reynolds, for his acceptance (even, encouragement) of my decision to re-
publish. I am indebted to Jeremy Horder, Nicola Lacey, Andrew von Hirsch and
Karen Yeung for their comments on an earlier version.
Chapter 2 is a new essay, although there is a small overlap with my article on
‘Public Duties and Criminal Omissions: Some Unresolved Questions’ [2011]
1 Journal of Commonwealth Criminal Law 1, and some continuity with my
earlier article on ‘The Scope of Criminal Liability for Omissions’ at (1989) 105
Law Quarterly Review 424. For comments on versions of the new essay I am
grateful to Rick Lippke, Stuart Green, Jennifer Collins, Brenda Midson, Julia
Tolmie, Lucia Zedner, Antony Duff and Sandra Marshall, and to members of
the Law Faculty at the University of Minnesota, members of the Criminal Law
Discussion Group at the University of Oxford, and members of the law schools
at the University of Canterbury, Victoria University of Wellington, the University
of Otago, the University of Waikato, the University of Auckland and Auckland
University of Technology who attended and responded to my various talks.
Chapter 3 is a revised version of my Chorley Lecture, delivered at the London
School of Economics in June 2010. It was first published at (2011) 74 Modern
Law Review 1, and I am grateful to the General Editor, Hugh Collins, for
responding enthusiastically to my enquiry about re-publication. I am indebted
to Beatrice Krebs for research assistance, and, for contributions and comments
on drafts, to Petter Asp, James Chalmers, James Edwards, Jeremy Horder,
Douglas Husak, Nicola Lacey, Andrew von Hirsch and Lucia Zedner.
Chapter 4 is a revised version of the 16th John Maurice Kelly Memorial
Lecture, delivered at University College, Dublin in October 2010. It was first
published at (2010) 45 Irish Jurist 1, and Thomson Reuters are content for me to
re-publish here. I am grateful for comments on drafts to Mark Coen, Caroline
Fennell, Shane Kilcommins, Tom O’Malley, Andrew Simester and Lucia Zedner.
Chapter 5 was first published at (2008) 11 New Criminal Law Review 232,
and the University of California Press is content for me to re-publish here. I am
indebted to Grant Lamond, Bob Sullivan and Victor Tadros for their comments
on an earlier draft. I am grateful to John Gardner for the inspiration, and some
observations on my arguments are to be found in the ‘Reply to Critics’ at the
end of his Offences and Defences (2007), 246–48.
Chapter 6 is a revised version of the 2010 Lockhart lecture, delivered at the
University of Minnesota Law School in September 2010. It was first published at
viii Acknowledgements
(2011) 5 Criminal Law and Philosophy 237, and I am grateful to Doug Husak,
co-editor of that journal, for enthusiastically endorsing re-publication here. I
am indebted to Richard Frase, Fionnuala ni Aolain, Darryl Brown, Andrew
Simester, Patrick Tomlin and Lucia Zedner for comments on drafts, and also to
members of the Oxford Criminal Law Discussion Group. This chapter stemmed
from research which formed part of the three-year AHRC project described
below.
Chapter 7 was first published as a contribution to James Chalmers, Fiona
Leverick and Lindsay Farmer (eds), Essays in Criminal Law in Honour of Sir
Gerald Gordon (Edinburgh University Press, 2010). It is reprinted here with the
full support of the editors. I am grateful to Heather Keating, Jonathan Herring,
Ronnie Mackay and Clare McDiarmid for their comments and suggestions.
Chapter 8 is a new essay, but it derives from research originally carried out in
order to write and later to revise parts of what is now chapter 19 of B Emmerson,
A Ashworth and A Macdonald (eds), Human Rights and Criminal Justice (3rd
edn, 2012).
Between 2010 and 2013 I have been co-holder, with Lucia Zedner, of a grant
from the Arts and Humanities Research Council (AH/H015655/1) for research
into preventive justice. The principal fruits of that research are to be published
in a forthcoming monograph entitled Preventive Justice, but that project has
dominated my intellectual processes in recent years, and has been considerably
influential in the development of Chapters 2, 6 and 9 of the present volume. I
therefore record my gratitude to the AHRC for their support, and to my col-
league Lucia Zedner for her generous involvement in the essays that form this
book, particularly her readiness to comment on drafts and to discuss ideas.
Contents
Preface v
Acknowledgments vii
1: Is the Criminal Law a Lost Cause? 1
1.1 Distinguishing Criminal Offences by Reference to their Content 2
1.2 The Procedural Distinction 5
1.3 The Functional Distinction 8
1.4 Proceedings and Protections 13
1.5 The Seriousness of Wrongdoing 15
1.6 Equal Treatment, Countervailing Interests and Differential
Enforcement 20
1.7 Criminalisation and Sentencing 26
1.8 The Principled Core of Criminal Law 28
2: Criminalising Omissions 31
2.1 The Place of Omissions in the Criminal Law 32
2.2 The Foundations of Legal Duties 38
2.3 A Re-appraisal of Duty-Situations 42
2.4 Omissions Offences and the Rule of Law 66
2.5 The Contours of Omissions Liability 68
2.6 Omissions as Offence-Elements 73
2.7 What Duty-Situations Should Require 75
2.8 Conclusions 78
3: Ignorance of the Criminal Law, and Duties to Avoid it 81
3.1 Is Ignorance of the Criminal Law No Defence? 81
3.2 The Ignorance-of-Law Doctrine and the Principle of Legality 83
3.3 Three Different Contexts for Ignorance of the Criminal Law 87
3.4 What are the State’s Obligations? 100
3.5 Some Practical Implications 102
3.6 Conclusions 106
4: Should Strict Criminal Liability be Removed from All Imprisonable
Offences? 107
4.1 What is Strict Criminal Liability? 110
4.2 Reasons for Requiring Fault for Criminal Conviction 112
4.3 Serious Crime: Limitations and Exceptions 116
4.4 Imprisonment Without Fault 123
4.5 Conclusions 128