Risk, pre-emption, and the limits of the criminal law

Child, John and Hunt, Adrian (2010) Risk, pre-emption, and the limits of the criminal law. In: Doolin, Katherine, Child, John, Raine, John and Beech, Anthony (eds.) Whose criminal justice? State or community? Waterside Press, pp. 51-68. ISBN 9781904380627 (paperback)

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The paradigmatic conception of criminal offences, and the most common justification offered for subjecting individuals to state sanction, is that the criminal law punishes actions which have caused “harm”. Actions that result in lesser states may be condemned by the community, but they are not generally the concern of the criminal law.

However, although harm based offences remain the paradigm, much of the current literature in criminological and legal fields claims to trace a marked shift from the criminalisation of harm towards the criminalisation of “risk”: risk both in terms of certain behaviour and/or in terms of individual predispositions. Such a trend raises two important issues. First, even within literature that purports merely to be concerned with describing such trends, there is nonetheless a clear theme, sometimes expressed, other times implied, that the trend identified constitutes an inappropriate use of the substantive criminal law, and punitive criminal sanctions. Secondly, even if we accept the trend in principle, we must question the terms under which such expansion can be justified and modelled. Do we, for example, present harm based offences as the priority of the criminal law and so construct risk based offences based on their proximity to harm? Or, alternatively, do we prioritise issues of culpability: accepting that despite the remoteness of an act from the intended harm, and possibly the likelihood of future harm, the acted upon intention requires sanction?

This chapter will examine the orthodox conception of the criminal law, as well as empirical and normative claims about current trends. In so doing we will concentrate on the content, structure and grammar of orthodox and recent criminal offences. We will explore the normative justifications for such offences by considering issues associated with conceptions of harm, risk and culpability as reflected in the definition of inchoate and bespoke offences. Beyond this, however, we will also seek to examine whether changes in the approaches to the structure and grammar of criminal offences, as reflected in definitions of more recently enacted offences, go even further than more permissive conceptions of orthodox criminal law methodology might be willing to contemplate.

Item Type: Book Section
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: K Law > KD Law of the United Kingdom and Ireland > KD0051 England and Wales
Depositing User: John Child
Date Deposited: 11 Sep 2013 07:18
Last Modified: 17 Mar 2016 15:23
URI: http://sro.sussex.ac.uk/id/eprint/45991

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