Orthodox thought holds that criminalisation should be subject to a wrongness constraint: that is, that conduct may be criminalised only if it is wrongful. This article argues that this principle is false, at least as it is usually understood. On the one hand, the wrongness constraint seems to rest on solid foundations. To criminalise conduct is to facilitate its condemnation and punishment; to coerce citizens against it; and to portray it as wrongful. All of these actions are presumptively impermissible when (...) the conduct that they target is not wrongful. On the other hand, the article argues that the wrongness constraint is nevertheless unsound. Although it is presumptively impermissible to criminalise non-wrongful conduct, this might yet be permissible, given sufficient countervailing reasons. Moreover, there are realistic cases – specifically, some cases of over-inclusive criminalisation – in which such countervailing reasons exist. (shrink)

This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and (...) its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst minimising possible concerns of legality arising from the proposed definition’s uncertain scope. (shrink)

This review article examines Jeremy Horder’s proposals for reform of the law of homicide in his book Homicide and the Politics of Law Reform. It focuses on Horder’s defence of the Law Commission’s proposals for a three-tier structure of homicide offences, and the ‘moderate constructivist’ theory that he relies upon in mounting this defence. Horder’s theory, it is argued, fails to provide sound normative foundations for his preferred structure. However, a qualified defence is offered of another of Horder’s proposals: to (...) give public opinion research a role in homicide reform. This would help to give substance to the principle of fair labelling in an area of the law where this principle is frequently invoked, but is also uncertain in its implications and force. (shrink)

Both law and morality routinely distinguish between direct wrongs of causing harm oneself and indirect wrongs of contributing to another’s harmful actions. This article asks whether this distinction matters for the purposes of a theory of criminalisation. It argues that, in some respects, the distinction matters less than is often supposed: generally, the potential future actions of others have at least some relevance to what we ought to do. However, it is morally significant that criminal liability for indirect wrongdoing can (...) make our freedom to do valuable things contingent upon others’ failure to comply with their moral obligations. This raises substantial concerns of autonomy and fairness that tell against the creation of some – but by no means all – indirect crimes. (shrink)

In Loss of Control and Diminished Responsibility, Alan Reed and Michael Bohlander collect a wide range of essays on the eponymous partial defences to murder. These essays provide detailed analysis of recent English reforms in this area and place these reforms in comparative perspective. This review considers the contribution made by this book to the explanation and evaluation of partial defences. It concentrates in particular on the exculpatory force of loss of control; the distinctness of loss of control from diminished (...) responsibility; and the defences’ unique mitigatory effect. (shrink)