Nevertheless, at a theoretical level, here are some of the issues which would need to be considered:
CRIMINALISATION AS A LAST RESORT
One issue is whether criminalising behaviour is seen as something undesirable which requires a strong justification or whether criminalising behaviour is not in itself necessarily bad. This is a very important question. If criminalisation is seen as something that requires a very strong justification then we would need to be persuaded both that:
The conduct caused a serious harm.
There was no other way of preventing the harm.

The second point is that even if we locate harmful behaviour we should prefer to use other means of tackling the behaviour. Let us say, for example, that dog fouling in a park had got so bad that children were not able to use the park. It may be that taking photographs of dog owners who allowed their dogs to foul and posting them on the Web or in public places may be an effective deterrent and that criminal law would not be used. Or it may be that educating dog owners about the dangers of dog fouling would be sufficient. Indeed, one might think that many of the wrongs that trouble society might be better addressed by more informal and less coercive ways than using the criminal law.

So why might someone take the view that criminalisation should be regarded as a ‘last resort’? A popular reason is that we prize autonomy, that is, the freedom to live our lives as we wish. The government should restrict what we do only if there is a very good reason for doing so. The criminal law with its risk of imprisonment and its condemnatory message is a particularly serious intervention in our freedom and should be used only if absolutely necessary. A slightly different reason is that it is better for people to work out for themselves what behaviour they should or should not do. The criminal law in ordering people how to behave discourages people from thinking issues through for themselves.

There are some who do not accept these points. They argue that criminal law should not be regarded in a negative light, as an evil to

-6-

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Criminal Law: The Basics
Table of contents

Table of contents

  • Criminal Law the Basics i
  • The Basics ii
  • Title Page iii
  • Contents v
  • Acknowledgements vi
  • Preface vii
  • 1 - Basic Concepts in Criminal Law 1
  • 2 - Homicide 32
  • 3 - Assault 56
  • 4 - Property Offences 81
  • 5 - Accomplices and Inchoate Offences 102
  • 6 - Defences 121
  • Index 143
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