was originally sought in the acts themselves—that all crimes were in an important sense moral wrongs, or mala in se—and that the law merely recognized this wrongful quality.
It can be explained then, by this definition, that certain conduct or actions are considered crimes in order to recognise public wrongs as violations of the rights and duties owed to the whole community. This view accords with that of Hart (‘The Aims of the Criminal Law’ (1958) 23 L & CP 401) who considered that a crime is ‘conduct which … will incur a formal and solemn pronouncement of the moral condemnation of the community’.
The procedural definition is favoured by other writers such as Williams (‘The Definition of Crime’ (1955) 8 CLP 107), who defined a crime as
An act capable of being followed by criminal proceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics which mark it as criminal. … Criminal law is that branch of law which deals with conduct … by prosecution in the criminal courts.
Albeit a rather circular term (a crime is a crime if it is a crime), this definition accords with the modern practicalities of the criminal law as providing a rigid and detailed structure for the operation of charging and punishing the commission of criminal offences (see below at 1.7).
1.4The need for the criminal law?
In speaking of the ‘need’ for the criminal law, we are essentially considering the justifications for the imposition of criminal liability. In addition, we are concerned with the respective ‘functions’ of the criminal law in its operation. By way of overview, the ‘Report on Homosexual Offences and Prostitution’ (1957) (Cmnd 247) (the ‘Wolfenden Report’) considered the purpose of the criminal law to be
to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable … It is not … the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.
1.4.1 Functions of the criminal law
The functions (or ‘purposes’) of the criminal law are many and varied. Some commentators rank certain functions above others, whilst other commentators argue that the functions act in conjunction to provide for a consistent and clear approach. Understanding these functions is often helpful when critically analysing the state of the criminal law and observing whether the substantive law achieves, or fails to achieve, one of its functions. Some of the main functions of the law can be listed as follows:
•protection of individual rights and liberties;
•maintenance of public order;
•enforcement of legal rules and orders;
•the conferral of obligations;
•the regulation of human behaviour and relationships; and
•punishment of behaviour contrary to legal rules and orders.
1.4.2 An ‘overuse’ of the criminal law?
Ashworth (‘Is the Criminal Law a Lost Cause?’ (2000) 116 LQR 225) questions the extent to which the criminal law operates in today’s legal structure. With reference to the lack of real comprehension as to the number of criminal offences in existence and the ambiguity as to the creation of new criminal offences, Ashworth contends that the criminal law may be a lost cause. See Chalmers and Leverick, ‘Tracking the Creation of Criminal Offences’ [2013] Crim LR 543 for an interesting discussion of the number of offences alleged to have been created by the Labour Government between 1997 and 2006 (suggested to be 3,023).
1.5Principles of criminal law
A number of principles or ‘ideals’ that underpin the operation of the substantive criminal law have been identified over the long history of our common law system. The principles, similar to the concept of the Rule of Law, are essentially the ‘aims’ or ‘models’ of behaviour and attitude expected of the criminal law.
The four key principles are identified in Figure 1.1 and explained below at 1.5.1–1.5.4.
For a more detailed account of the four principles, see Horder, Ashworth’s Principles of Criminal Law, 9th edn (OUP, 2019).
Figure 1.1The principles of the criminal law
1.5.1 Principle of ‘fair warning’
This principle reflects the idea that the law should be communicated in a clear and accessible manner to the public. Given that England and Wales has a common law legal system, it has long been advocated that, in order to give true effect to this principle, the criminal law should be codified, as in civil law systems. Robinson (‘A Functional Analysis of Criminal Law’ (1994) 88 Nw UL Rev 857) is of the view that multiple codes are required in order to promote this principle. Robinson advocates the use of a code written in simple language explaining to the public what they can and cannot do (a ‘rule articulation’ code) and codes that are used for the administration and enforcement of law (a ‘liability assessment’ code).
The principle of fair warning is essential to understanding how an offence should be defined. References to undefined or ambiguous terms in a statute, for example, would be contrary to the principle of fair warning. By way of example, the term ‘dishonesty’ used in the Theft Act 1968 has not been afforded a statutory definition, despite its dominating presence in the law. The common law has had to step in to provide such a definition, but it is necessary, for the promotion of this principle, that the definition is clear, accessible and informs the general public of what they cannot do (ie what is dishonest and, as such, what they cannot do which is dishonest).
1.5.2 Principle of ‘fair labelling’
Horder (Ashworth’s Principles of Criminal Law, 9th edn (OUP, 2019)) states that the concern of fair labelling is as follows:
… to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking.
In essence, there must be an accurate and visible link between the label (ie the name of the offence) and the conduct criminalised. The fairness of labelling is relevant for two main reasons:
•It promotes the fair warning principle in that people who understand the label associated with the offence will inevitably understand the offence and what they can and cannot do.
•It promotes transparency and objectivity in the criminal justice system by stigmatising individuals with an accurate label (eg a rapist or a murderer).
The key in this discussion,
