Lecture 10 Conclusions where are criminal law and

Lecture 10 Conclusions: where are criminal law and criminal justice going, and where should they go from here?

Focus of lecture Where is criminal law going now? l Where is criminal justice going now? l Discussion and conclusions: where should criminal law and criminal justice go from here? l

Where is criminal law going now? l Images of criminal law – liberalism and law and economics (Norrie 2001): l E. g. actus reus and voluntary acts l E. g. the return to subjectivism in mens rea l E. g. defences where people are not ‘fully responsible’ for their actions l E. g. compliance with ECHR under HRA 98

Where is criminal law going now? l Cf. rise in risk-based criminal law – ‘punitive managerialism’: l E. g. widening of ‘appropriation’ in theft under Gomez and Hinks l E. g. imposition of strict liability in child rape offence under SOA 03 in G l E. g. extension of fraud in FA 06 to cover situations where victim suffers no loss l E. g. use of HRA 98 – procedural, not substantive (Ashworth 2000, Dennis 2005)

Where is criminal law going now? l Cf. continuing role of discretion in shaping criminal law (Norrie 2005): l E. g. juries’ discretion on foresight as intent l E. g. juries’ discretion on dishonesty in theft l Variety of values play a part: l Morality (Brown, Steane) l Patriarchal protection (Stone and Dobinson) l Deterrence (Corcoran v Anderton) l Maintenance of social order (Jones and Milling) l Discretion in statute law (SOA 03, CMCHA 07)

Where is criminal justice going now? l Images of criminal justice – liberalism and due process: l E. g. police ‘reasonable suspicion’ to use power l E. g. CPS prosecution only ‘in public interest’, where reasonable chance of conviction l E. g. courts: presumption in favour of bail, defendants’ right to trial by jury, guilt beyond reasonable doubt, prison only if ‘so serious’ l E. g. duty of community and custodial punishment to rehabilitate and reintegrate as well as punish

Where is criminal justice going now? l Cf. rise in risk-based criminal justice – ‘punitive managerialism’: l Extension of police detention, removal of ‘reasonable suspicion’ for terrorism l The increase in deterrent and incapacitative sentencing l The introduction of new risk-based, punitive civil orders (e. g. ASBOs, SOPOs) l Challenge to ECHR (e. g. Arts 5 and 6)?

Where is criminal justice going now? l Cf. continuing role of discretion in shaping criminal justice: l l l l E. g. police ‘discretion gap’ – crime control and maintaining order (Mc. Conville et al. 1991)? E. g. CPS Code has little influence on decision-making (Hoyano et al. 1997) E. g. ‘court cultures’ more influential than law on bail (Hucklesby 1997) E. g. court discretion on excluding sexual history evidence (Temkin and Krahe 2008) E. g. inconsistency in court sentencing (Hood 1992, Tarling 2006) E. g. risk vs. rehabilitation in probation work (Raynor and Robinson 2005) E. g. ability of prisons to repress or rehabilitate (cf. Scraton et al. 1991, Liebling and Arnold 2004)

Discussion and conclusions: where should criminal law and criminal justice go from here? l Reorganisation on principled grounds: l Ashworth (2000) – limiting criminal law to ‘substantial wrongdoing’ l Cavadino and Dignan (2007) – substantive human rights and maximum liberty in criminal justice

Discussion and conclusions: where should criminal law and criminal justice go from here? l Accepting that discretion is inevitable: l l l Government attempts to remove discretion and expand scope of criminal law and criminal justice (Cohen 1985; cf. Garland 2001) But common criminal law still influential (e. g. Holley, G [2003]) and police, courts etc. still have decisionmaking power Impossible for democratic government to control the whole of criminal law and criminal justice New Labour’s transformation managerial, not cultural (Young and Matthews 2003) More patience and tolerance of discretion needed

Discussion and conclusions: where should criminal law and criminal justice go from here? l Change beyond criminal law and criminal justice: l Real extent of crime and ‘justice gap’ unknown (Cavadino and Dignan 2007) l Conflict and inconsistency in criminal law (Lacey 1995, Norrie 2001) l Liberal and risk approaches in criminal justice both too individualistic (Zedner 2004)

Discussion and conclusions: where should criminal law and criminal justice go from here? l Change beyond criminal law and criminal justice: l l l Hillyard and Tombs (2007) – ‘social harm’ approach Law and criminal justice overemphasise less harmful behaviours, overlook more harmful ones Reiner (2007) – neo-liberal socio-economic policies play key role in rising crime and harsher punishments Changing criminal law and criminal justice means moving beyond risk assessment (Walklate 2000, Young and Matthews 2003) … And changing society for the better (Wilkinson 2005, Cook 2006)