Academic journal article International Journal of Punishment and Sentencing

Morality in Criminal Cases

Academic journal article International Journal of Punishment and Sentencing

Morality in Criminal Cases

Article excerpt


Morality forms a big part of criminal law according to the judges. In Canada, Estey J said that the purposes of the criminal law included "public peace, order, security, health and morality." (1) At least two other Supreme Court decisions have approved that summary. (2) In Kingston, Lord Mustill said in that there have been few occasions in modern times when the dissociation between the mental and moral aspects of a crime has been doubted. (3) Even the conduct of criminal case has an air of morality about it. In Mirza, Lord Steyn spoke of the moral authority of trial by judge and jury. (4) The eminent legal philosopher Joseph Raz said that conformity to the rule of law is a moral virtue. (5)

In this article I will resist the temptation to examine the nature and rationale of morality in criminal law. Aristotle had a good deal to say on it. So have Mill, Devlin, Hart, Feinberg, Rawls, Raz and so many others. There are recent articles. (6) But I may refer briefly to what the moralists say when I examine the writings of the judges.

Commercial morality

Bankruptcy cases are full of warnings to bankrupts who want release. Don't engage in commercial immorality. But once at least the term found its way into the criminal law. Rodney Adler pleaded guilty to a number of commercial crimes. The sentencing judge referred to one group of charges, then another. His Honour said:

   They also display a lack of commercial morality and the telling of
   lies for business purposes.

Mr Adler appealed. The Court of Criminal Appeal repeated the judge's words with approval. (7)

Commercial fraud has arisen in civil cases. The judges are agreed that fraud imports moral turpitude. (8) The same description would apply to criminal cases.

No victim

Most of the learned authors say that an act with no victim should not be a crime. Feinberg wrote a volume on the subject. (9) In 1859, Mill said that no one should be punished simply for being drunk (10) In Northern Territory, the law allows the police to apprehend a person in a public place who is intoxicated by alcohol or drug. It is for the protection of the person and of the community. On revival, the person is released without charge. (11) A wise provision. Illicit drugs have their own appeal to the criminal law. Those who import or sell or possess illicit drugs undermine the steadiness of many members of the community. Such acts are, and should be, criminal for that reason. But the taking of such illicit drugs are acts without a victim. So it was that a young man who was chroming was found to be not guilty of an offence. That was because community reaction would at most be anguished, not offended. (12)

Statutory interpretation

There are generally two sorts of statutes that courts interpret. The first is the constitution of a country. The second is the ordinary legislation which parliaments pass and repeal. A constitution has its own special qualities. Lord Bingam said in Reyes,

   The court has no licence to read its own predilections and moral
   values into the constitution. (13)

Nor can a court imagine the thoughts of those who drafted the constitution. As Lord Hoffmann said, that it would be wrong to go further than interpreting the statutory language of the constitution and "give free rein to whatever they consider should have been the moral and political views of the framers of the constitution." (14)

So if the constitution clearly speaks of the death penalty a court must give effect to it, whatever the views of the morality and efficacy of capital punishment. (15)

What then of the human rights legislation? Lord Steyn referred to the moral authority of human rights in the eyes of the public. (16)


Prostitution is having sex for money or other reward. Religions say it is sinful because of its immorality. …

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