Positive obligations in criminal law

POSITIVE OBLIGATIONS IN CRIMINAL LAW This book offers a set of essays, old and new, examining the positive obligations of individuals and the state in matters of criminal law The centrepiece is a new, extended essay on the criminalisation of omissions – examining the duties to act imposed on individuals and organisations by the criminal law, and assessing their moral and social foundations Alongside this is another new essay on the state’s positive obligations to put in place criminal laws to protect certain individual rights Introducing the volume is the author’s much-cited essay on criminalisation, ‘Is the Criminal Law a Lost Cause?’ The book sets out to shed new light on contemporary arguments about the proper boundaries of the criminal law, not least by exploring the justifications for imposing positive duties (reinforced by the criminal law) on individuals and their relation to the positive obligations of the state Positive Obligations in Criminal Law Andrew Ashworth OXFORD AND PORTLAND, OREGON 2013 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: mail@hartpub.co.uk Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Website: http://www.isbs.com © Andrew Ashworth 2013 Andrew Ashworth has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-505-2 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow Preface Two types of positive obligation are explored in the essays that make up this volume First, there are positive obligations laid on individuals, companies and other organisations by the criminal law While the predominant form of criminal laws is the prohibition, most legal systems contain some offences of omission The failure to fulfil a certain duty is criminalised, sometimes at common law (eg misconduct is a public office; manslaughter by gross negligence), more commonly by statute Criminal liability for omissions is typically understood by common lawyers to be ‘exceptional’ or ‘special,’ and one of the objectives of this volume (in particular, Chapters and 3) is to re-assess the justifications for, and proper limits of, omissions offences The second type of positive obligation is one that rests upon the state It will be argued that the state is under various positive obligations in relation to criminal liability, sometimes as a concomitant of the obligations imposed on subjects The State’s positive obligations include its (international) duty to have in place laws that give adequate protection to the rights of subjects (Chapter 8), not least to children (Chapter 7); and its duty of justice, which applies so as to require the drafting of its criminal laws in a way that respects its subjects as autonomous members of society and enables them to factor the law into their practical deliberations (Chapters 4, and 6); and this includes a particular duty to publicise and communicate its criminal laws (Chapters and 3) The nine chapters below are designed to throw different shafts of light on these various positive obligations Chapter 1, ‘Is the Criminal Law a Lost Cause?’, is a foundational essay on criminalisation, examining the relationship between the criminal law and other forms of legal regulation This chapter makes the case for a principled approach to the decision to create a criminal offence, equality in its enforcement, and proportionality in sentencing As is soon evident in Chapter 2, ‘Criminalising Omissions’, the approach advocated in the first chapter has a particular resonance with omissions liability, in relation to which the decision to criminalise is a little-discussed issue The new essay that forms Chapter aims to raise normative questions about the basis for and extent of criminal liability for omissions, paying special attention to the neglected issue of the appropriateness of recognising certain civic duties and reinforcing them with criminal offences The content of Chapter is well captured by its title, ‘Ignorance of the Criminal Law, and Duties to Avoid it’ As well as critically re-assessing the common law doctrine that ignorance of the criminal law is no excuse, the essay develops the argument that citizens should have a duty to make reasonable efforts to know the criminal law, and that this should be the concomitant of an obligation on the state to ensure that criminal laws are duly publicised and communicated to all those in the country vi Preface Chapter asks, ‘Should Strict Criminal Liability be Removed from All Imprisonable Offences?’ This essay examines the reasons why the state should recognise an obligation to ensure that its criminal laws require fault as a condition of liability It assesses the counter-arguments in favour of strict liability, but then argues that where the deprivation of a person’s liberty is a potential sanction, strict liability has no place at all Chapter explores the connected issue of justifying constructive criminal liability, under the title ‘A Change of Normative Position: Determining the Contours of Culpability in Criminal Law’ The argument is that respect for the autonomy of citizens indicates that criminal liability should in principle be based on intention, recklessness or knowledge, and moreover that this subjective element should be linked to any consequence, result or circumstances specified in the crime Thus the essay attacks common arguments in favour of even a moderate amount of constructive criminal liability, while recognising that there is room for debate on the place of (gross) negligence as a standard of criminal liability In Chapter 6, on ‘The Unfairness of Risk-Based Possession Offences’, it is argued the possession offences based on risk tend to be inconsistent with core doctrines of the criminal law This raises the question of the justifications for criminalising risk-based possession of, for example, firearms or other weapons A key issue, discussed in this chapter, is the extent to which there should be a positive obligation on citizens to safeguard potentially dangerous objects and, if there is such an obligation, how seriously a failure to carry it out should be treated In Chapter 7, on ‘Child Defendants and the Doctrines of the Criminal Law’, the discussion turns to a sphere in which the state has clear positive obligations under the UN Convention on the Rights of the Child This chapter considers what the criminal law should expect of young children, and what provisions should be made in the criminal law to reflect the fact that, being under the age of majority, children cannot properly be held to the same standards as adults Chapter is a new essay which explores the nature and extent of the state’s positive obligations under the European Convention on Human Rights to have certain criminal laws in place It conducts a critical examination of the developing jurisprudence of the European Court of Human Rights, in order to probe its logic and its limits, and to assess the extent to which the United Kingdom can expect to find that this is a further source of pressure to legislate on the criminal law Chapter is a short Epilogue My academic acknowledgements in relation to each essay are printed below Here, it remains for me to record my deep thanks to Richard Hart and his team for giving me the opportunity to publish with them, and for the smooth publication process Finally, my warm thanks to Von for her support in this and other academic endeavours: I am very fortunate All Souls College, University of Oxford February 2013 Acknowledgements Chapter is a revised version of my inaugural lecture as the 14th Vinerian Professor of English Law in the University of Oxford, and was first published at (2000) 116 Law Quarterly Review 225 I am grateful to the Editor, Francis Reynolds, for his acceptance (even, encouragement) of my decision to republish I am indebted to Jeremy Horder, Nicola Lacey, Andrew von Hirsch and Karen Yeung for their comments on an earlier version Chapter is a new essay, although there is a small overlap with my article on ‘Public Duties and Criminal Omissions: Some Unresolved Questions’ [2011] Journal of Commonwealth Criminal Law 1, and some continuity with my earlier article on ‘The Scope of Criminal Liability for Omissions’ at (1989) 105 Law Quarterly Review 424 For comments on versions of the new essay I am grateful to Rick Lippke, Stuart Green, Jennifer Collins, Brenda Midson, Julia Tolmie, Lucia Zedner, Antony Duff and Sandra Marshall, and to members of the Law Faculty at the University of Minnesota, members of the Criminal Law Discussion Group at the University of Oxford, and members of the law schools at the University of Canterbury, Victoria University of Wellington, the University of Otago, the University of Waikato, the University of Auckland and Auckland University of Technology who attended and responded to my various talks Chapter is a revised version of my Chorley Lecture, delivered at the London School of Economics in June 2010 It was first published at (2011) 74 Modern Law Review 1, and I am grateful to the General Editor, Hugh Collins, for responding enthusiastically to my enquiry about re-publication I am indebted to Beatrice Krebs for research assistance, and, for contributions and comments on drafts, to Petter Asp, James Chalmers, James Edwards, Jeremy Horder, Douglas Husak, Nicola Lacey, Andrew von Hirsch and Lucia Zedner Chapter is a revised version of the 16th John Maurice Kelly Memorial Lecture, delivered at University College, Dublin in October 2010 It was first published at (2010) 45 Irish Jurist 1, and Thomson Reuters are content for me to re-publish here I am grateful for comments on drafts to Mark Coen, Caroline Fennell, Shane Kilcommins, Tom O’Malley, Andrew Simester and Lucia Zedner Chapter was first published at (2008) 11 New Criminal Law Review 232, and the University of California Press is content for me to re-publish here I am indebted to Grant Lamond, Bob Sullivan and Victor Tadros for their comments on an earlier draft I am grateful to John Gardner for the inspiration, and some observations on my arguments are to be found in the ‘Reply to Critics’ at the end of his Offences and Defences (2007), 246–48 Chapter is a revised version of the 2010 Lockhart lecture, delivered at the University of Minnesota Law School in September 2010 It was first published at viii Acknowledgements (2011) Criminal Law and Philosophy 237, and I am grateful to Doug Husak, co-editor of that journal, for enthusiastically endorsing re-publication here I am indebted to Richard Frase, Fionnuala ni Aolain, Darryl Brown, Andrew Simester, Patrick Tomlin and Lucia Zedner for comments on drafts, and also to members of the Oxford Criminal Law Discussion Group This chapter stemmed from research which formed part of the three-year AHRC project described below Chapter was first published as a contribution to James Chalmers, Fiona Leverick and Lindsay Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press, 2010) It is reprinted here with the full support of the editors I am grateful to Heather Keating, Jonathan Herring, Ronnie Mackay and Clare McDiarmid for their comments and suggestions Chapter is a new essay, but it derives from research originally carried out in order to write and later to revise parts of what is now chapter 19 of B Emmerson, A Ashworth and A Macdonald (eds), Human Rights and Criminal Justice (3rd edn, 2012) Between 2010 and 2013 I have been co-holder, with Lucia Zedner, of a grant from the Arts and Humanities Research Council (AH/H015655/1) for research into preventive justice The principal fruits of that research are to be published in a forthcoming monograph entitled Preventive Justice, but that project has dominated my intellectual processes in recent years, and has been considerably influential in the development of Chapters 2, and of the present volume I therefore record my gratitude to the AHRC for their support, and to my colleague Lucia Zedner for her generous involvement in the essays that form this book, particularly her readiness to comment on drafts and to discuss ideas Contents Preface v Acknowledgments vii 1: Is the Criminal Law a Lost Cause? 1.1 Distinguishing Criminal Offences by Reference to their Content 1.2 The Procedural Distinction 1.3 The Functional Distinction 1.4 Proceedings and Protections 13 1.5 The Seriousness of Wrongdoing 15 1.6 Equal Treatment, Countervailing Interests and Differential Enforcement 20 1.7 Criminalisation and Sentencing 26 1.8 The Principled Core of Criminal Law 28 2:  Criminalising Omissions 2.1 The Place of Omissions in the Criminal Law 2.2 The Foundations of Legal Duties 2.3 A Re-appraisal of Duty-Situations 2.4 Omissions Offences and the Rule of Law 2.5 The Contours of Omissions Liability 2.6 Omissions as Offence-Elements 2.7 What Duty-Situations Should Require 2.8 Conclusions 3:  Ignorance of the Criminal Law, and Duties to Avoid it 3.1 Is Ignorance of the Criminal Law No Defence? 3.2 The Ignorance-of-Law Doctrine and the Principle of Legality 3.3 Three Different Contexts for Ignorance of the Criminal Law 3.4 What are the State’s Obligations? 3.5 Some Practical Implications 3.6 Conclusions 31 32 38 42 66 68 73 75 78 81 81 83 87 100 102 106 4:  Should Strict Criminal Liability be Removed from All Imprisonable Offences? 107 4.1 What is Strict Criminal Liability? 110 4.2 Reasons for Requiring Fault for Criminal Conviction 112 4.3 Serious Crime: Limitations and Exceptions 116 4.4 Imprisonment Without Fault 123 4.5 Conclusions 128 208 Human Rights and Positive Obligations trafficking itself, within the meaning of art 3(a) of the Palermo Protocol and art 4(a) of the Anti­Trafficking Convention, falls within the scope of art of the Convenion’.46 In this way the Court has implied a further right into Article 4, that no one shall be subjected to human trafficking This was a bold step, and one taken without an explanation of the relationship between the definition of human trafficking and the definitions of the key terms already expressed on the face of Article The tripartite Palermo definition of human trafficking refers to a certain activ­ ity (‘recruitment, transportation, transfer, harbouring or receipt of persons’), a certain means (including force, fraud, and the making of payments for the pur­ pose of securing consent to a controlling relationship), and the intent to exploit another for the purpose of sex, labour, or the removal of organs.47 On the second issue of whether the state was under a positive obligation in relation to Article 4, the Court in Siliadin started from the obligation imposed on all Member States by Article Specifically in relation to Article it noted that the other relevant international instruments placed positive obligations on states, particularly in relation to the protection of children and other vulnerable people On this basis, the Court held that ‘governments have positive obliga­ tions to adopt criminal law provisions which penalise the practices referred to in Article and to apply them in practice’.48 In line with its general approach, the Court in Rantsev developed the nature of the positive obligations more fully: ‘The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure practical and effective protection of the rights of victims or potential victims of trafficking Accordingly, in addition to criminal law measures to punish traffickers, art requires Member States to put in place adequate measures regulating businesses often used as a cover for human trafficking Furthermore, a state’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking’.49 The Court went on to spell out other positive obligations, such as that of taking operational measures to protect persons in immediate danger, that of investi­ gating claims of trafficking thoroughly, and that of co­operating with interna­ tional efforts to combat human trafficking Turning to the third issue, in Siliadin the Court found that French law at the relevant time did not have offences of slavery or servitude, and concluded that 46 Ibid, para 282 In para 283 the Court stated that there can be no derogation from Article 4, according to Article 15(2) of the Convention, but this is inaccurate Article 15(2) exempts only ‘Article (paragraph 1)’ This means that it is crucial to know whether the Court was implying the prohibition of human trafficking into Article 4(1) or Article 4(2), at least for the purposes of assess­ ing any derogation 47 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the Palermo Protocol, 2000), Art 3(a), cited in Rantsev, ibid, para 150; see also Directive 2011/36/EU, on preventing and combating trafficking in human beings, and protecting its victims, in the European Union 48 (2006) 43 EHRR 287, para 89 49 (2010) 51 EHRR 1, para 284 Conclusions 209 its much more limited offence of the exploitation of labour in conditions incom­ patible with human dignity was not adequate to assure Article rights.50 In Rantsev the Court did not find fault with the criminal laws of Cyprus or Russia, but found that both states had failed to investigate alleged human trafficking when relevant information had been given to them 8.6 CONCLUSIONS The development of positive obligations by the Strasbourg Court, based on a fair view of the implications of Article of the Convention, has brought some welcome minimum standards for the criminal laws of Member States Recognition of a positive obligation does not always require an extension of the criminal law: in X and Y v Netherlands51 the Court considered whether civil liability would be sufficient, and in Rantsev v Cyprus and Russia52 the Court indicated that regulatory measures and new immigration rules were necessary, as well as criminal prohibitions.53 But when it comes to criminal legislation, any extension of the law in one or more Member States needs to be carefully and convincingly argued As John Stuart Mill warned in the mid­nineteenth century,54 and as Liora Lazarus has argued effectively in recent times, 55 it is rela­ tively easy to claim that laws are necessary to prevent harm or to protect people from harm These are criminalisation decisions which require principled debate: behind the rhetoric of prevention lie various coercive powers which should be argued over in detail and not short­circuited by the finding of a positive obliga­ tion In conclusion, we may explore three aspects of the positive obligations mentioned above: first, the correct phraseology of the justification for a positive obligation; secondly, the problem of conflicting rights; and thirdly, the future scope and impact of positive obligations The classic formulation in the Osman judgment is that, where a positive obli­ gation relating to criminal law provisions is found, it amounts to a ‘duty to secure the right by putting in place effective criminal law provisions to deter the commission of offences involving the violation of that right ’.56 Care should (2006) 43 EHRR 287, para 148 Above, n 12 52 Above, n 45 53 For another area where the Court has held that civil law remedies are sufficient, at least in the absence of the consensus needed to support a criminal prohibition see Vo v France (2005) 40 EHRR 259 54 Mill wrote that, although the preventive function of government is undisputed, it is ‘far more liable to be abused, to the prejudice of liberty, than the punitory function; for there is hardly any part of the legitimate freedom of action of a human being that would not admit of being repre­ sented, and fairly too, as increasing the facilities for some form or other of delinquency’: JS Mill, On Liberty (1859), 106 55 Most notably in L Lazarus, ‘Positive Obligations and Criminal Justice: Duties to Protect or Coerce?’ in L Zedner and J Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (2012) 56 Osman v United Kingdom (2000) 29 EHRR 245, para 115 50 51 210 Human Rights and Positive Obligations be taken in this use of the deterrent rationale It is surely right to say that the existence of a criminal law against certain conduct conduces to deterrence; but it is far more doubtful to suggest that higher penalties for offences result in lower rates of offending Indeed, there is plenty of criminological evidence to show that the latter proposition is far from inevitable.57 It would be preferable to avoid any potential confusion by re­phrasing the positive obligation so as to emphasise the importance of censuring people for committing certain wrongs and imposing proportionate punishment on them (as distinct from, or in addi­ tion to, merely rendering them civilly liable) While an underlying element of deterrence should not be denied,58 it would be preferable for the Osman formu­ lation to be amended so as to refer to ‘putting in place effective criminal law provisions to censure and punish persons who violate that right’ The problem of conflicting rights emerges vividly from the Article case law, in particular the positive duty to have in place laws that protect the sexual integ­ rity of the young The House of Lords failed to confront two conflicting duties in R v G,59 and the European Court of Human Rights fell into the same error.60 G had been convicted of rape of a child, because he had sex with a consenting girl of 12 believing that she was 15 The defence was that conviction for this very serious offence amounted to a violation of the defendant’s Article right, and that a lesser conviction would have been more appropriate Baroness Hale’s speech is heavy on the social and psychological importance of preventing pre­ mature sexual intercourse, but devotes little attention to the age of the defend­ ant He was 15 years old, and therefore unable to consent to sexual activity himself This case is therefore a strong example of the pitfalls of positive obliga­ tions Of course there is a positive obligation on states to have in place a crimi­ nal law that provides for censure and proportionate punishment for sexual wrongs against the young But it makes little sense to apply that law unremit­ tingly to someone who is supposed to be within its protection: an adjustment needs to be made, so that the boy’s rights are recognised too Convicting G of rape of a child under 13 ought to have been recognised as a breach of his Article rights, a conclusion that could stand with the substance of Baroness Hale’s speech Finally, what is likely to be the future impact on English criminal law of posi­ tive obligations under the European Convention? There is no easy answer to this Few would have predicted, a decade ago, that Article would suddenly spring into life and give rise to positive obligations in respect of human traffick­ ing (although, in terms of impact on English law, the relevant legislation was 57 Eg A von Hirsch et al, Criminal Deterrence and Sentence Severity (1999), and A Doob and C Webster, ‘Sentence Severity and Crime: Accepting the Null Hypothesis’, Crime and Justice: A Review of Research, vol 30 (2003), 143 58 For elaboration, see A von Hirsch and A Ashworth, Proportionate Sentencing (2005), 23–24 59 [2008] UKHL 37, discussed critically at [2008] Crim LR 818 and by Lazarus (above, n 55), 148–49 See also ch above, especially 7.6 60 G v United Kingdom (2011) 53 EHRR SE25 Conclusions 211 already in place) Article is of particular interest, since it gives rise to both negative obligations (eg no criminalisation of homosexual acts over the age of consent) and positive obligations (to have in place sexual offences that penalise non­consensual sexual assaults) Along similar lines there may be some scope for the development of positive obligations in relation to Article (freedom of thought and religion), Article 10 (freedom of expression) and Article 11 (free­ dom of assembly and association), although at this stage one cannot be sure what form they would take What Article refers to as the right to security of the person may also give rise to positive obligations of some kind, and the Court may further develop the ambit of positive obligations arising from Article Moreover, one possibility is that the Court may give more detailed specifications of the positive obligations in relation to, say, sexual offences under Articles and 8, in a similar way to the level of detail on the use of firearms in relation to the right to life in the Makaratzis judgment.61 However, as argued above, it is important that new criminal offences or narrower defences are not required by the Court without proper examination of the arguments for and against using the criminal law to reinforce the state’s obligations 61 Above, n 32 Epilogue: Emphasising the Positive I T IS EVIDENT from the eight chapters above that, while some obligations can be identified unambiguously as ‘positive’ (in the sense that they require action, rather than abstinence), there are many contexts in which obligations have positive and negative aspects intertwined For example, some offences have elements that criminalise acts and other elements that criminalise failures to act: rape and other sexual offences may provide an example, insofar as they specify both an intentional act and the absence of a reasonable belief based on the taking of steps to ascertain whether the other party consents For the purposes of this volume such offences have been treated as offences of omission, on the reasoning that liability for such offences can only be established if the failure to fulfil a duty (in sexual offences, to ascertain whether the other party consents) is proved Insofar as an omission is an essential part of an offence, that offence requires a special set of justifications, according to the arguments set out in Chapter A similar intertwining is evident when we consider the obligations of the state Indeed, as we shall see, there is an inevitable tension between the state’s obligation to provide its subjects with security and the state’s obligation of justice, and within the obligation to provide security there can be overlaps between duties to create prohibitions and duties to criminalise omissions The relevant obligations of the liberal state include the duty to provide security and the duty of justice, and more needs to be said about them both As argued in Chapter 2.2 and Chapter 3.4, the state ought to develop structures and institutions capable of minimising threats to security of the person In most theories of political obligation, this duty of the state is presented as the corollary of the subject’s undertaking to obey the law: the subject yields some of her or his freedom to the state in return for the promise of reasonable efforts being made to minimise threats to personal security The citizen’s duty to pay taxes can be rationalised on a similar model, as the corollary of the expectation that certain public services will be provided More generally, the state’s duty to provide security requires it, among other things, to ensure that it maintains emergency services capable of responding when a person is in physical danger (see Chapter 2), to afford special protection to the rights of children (see Chapter 7), to ensure that there are criminal laws in place to protect people from violations of their rights, and to ensure the due enforcement of those laws (see Chapter 8) Epilogue: Emphasising the Positive 213 All of these three elements in the duty to provide security amount to positive obligations in their own right – in the sense that they require the state to take certain actions – but our focus here is on the second and third of these duties In terms of political theory the state must have a duty to enact laws prohibiting murder, violence, sexual attacks and so forth Such laws are justifiable both as censuring those who commit such egregious wrongs and as a form of deterrence to minimise the occurrence of those wrongs We saw in Chapter that European human rights law and other international human rights documents support the view that states have a positive obligation to have such laws in place, for the protection of the rights of (potential) victims We also saw, in Chapter 8.2 particularly, that there are some rights that yield both a positive obligation (to have in place laws that protect sexual integrity) and a negative obligation (to ensure that any such laws not trespass on the liberty of adults to follow their sexual choices) Persuasive though the argument for the state’s duty to provide security undoubtedly is, the problem is to be able to know where it ends If we continue to confine the argument to offences that criminalise conduct against personal security, the question of limits on criminalisation seems difficult to answer There may be a political irresistibility in claims of the need to enhance security, public safety, social defence, public protection – a vocabulary that sometimes seems to make an unanswerable case Attempts to answer the case can be made by, for example, mobilising empirical evidence to cast doubt on claims of the effectiveness of a law in providing protection, or by drawing attention to arguments of principle against criminalisation (on which see Chapter above), or by insisting on the limitations stemming from the State’s duty of justice (to be reviewed below) It is important to bear in mind the starting-point – that criminal laws are necessary to minimise the deprivation of citizens’ fundamental rights, and to censure those who attack or endanger those rights – and to reflect that the citizen’s right to be free from unwarranted coercion and unjustified conviction should also be maintained Thus within the state’s duty to provide security, properly elaborated, there should be found a constraint in the form of the security of individuals from unjustified state intrusions on their liberty.1 Put bluntly, security should not be seen as a one-way street in which greater state powers for ‘public protection’ are regarded as unqualified goods More tellingly, the state’s duty of justice should also be a source of significant limits on pursuit of the duty to provide security The two principles operate in tension with one another, although there are certainly respects in which (in practice) the tension is too slight or entirely absent, as with the serious strict liability offences discussed in Chapter To the extent that the duty of justice is taken seriously, however, it operates as a constraint on legislative endeavours put forward as necessary for greater security The foundations of the duty of justice lie in the obligation of the liberal state to respect its subjects as responsible See further L Zedner, Security, Key Ideas in Criminology Series (2009), 157–58 214 Epilogue: Emphasising the Positive moral agents within a political community The state should respect the individual worth of each person, rather than regarding them as mere numbers Treating individuals as responsible moral agents means at least four things: i) Requiring the state to abide by rule-of-law values, which prescribe that the law be clear, certain, stable and set out in advance (see Chapters 4, and above), so that individuals are able to decide how to conduct themselves in full knowledge of the consequences; ii) Recognising the state’s duty to publicise its criminal laws, so as to ensure that the law can operate as a guide to conduct and so that individuals can, without undue effort, find out what the law is (see Chapters and 3); iii) Requiring advertence as a precondition of criminal liability, which means that, in principle, offences should require proof of intention, recklessness or knowledge as to the prohibited consequence or circumstance (see Chapters 4, and above), so that individuals are not open to criminal conviction for accidental or unknown events unless a strong case has been made out for punishing (gross) negligence; iv) Requiring the state to take due account of the reduced capacity of some subjects, particularly children, so that they are not open to criminal conviction when their capacities are not sufficiently developed (see Chapter 7) These positive obligations flow from the state’s duty of justice which, in turn stems not so much from the European Convention on Human Rights or other international obligations as from a relationship between the state and its subjects that insists on respect for individuals as responsible agents It is plain from Chapters and 6, on strict liability and on possession offences respectively, that what is here termed a positive state obligation has often been entirely ignored by the government and the legislature in this country Strict liability offences and possession offences may be created without even a mention, let alone any open consideration, of the principles set out above Similarly, in relation to Chapter 3, offences are often created or extended without adequate publicity (adequate in the sense of being designed to reach those who might be thought likely to fall foul of the new law) Further, we noted in Chapter that in the UK there has been variable recognition of the special rights of children in the criminal process: even if we pass over the vexed but fundamental issue of the age of criminal responsibility, there are several respects in which the law appears to hold children to the same standards of expected behaviour as adults It was argued in Chapter that this is wrong, and that it stems partly from a failure to recognise the problem and partly from a political reluctance to be seen to ‘soften’ the law for the young The eight chapters are not entirely about the positive obligations of the state in respect of criminal law, however Chapter argues that individuals should accept a positive obligation to make reasonable efforts to know the criminal law: the thrust of that chapter is that the state has an obligation to take steps to make it easier for individuals to fulfil their duty, but that individuals have the Epilogue: Emphasising the Positive 215 duty nonetheless This argument was taken further in Chapter 2, where a whole range of positive obligations on individuals to take action in particular situations was sketched out The strongest case presented in favour of positive obligations on individuals was at the confluence of three streams of argument – the priority of life, the principle of urgency, and the principles of opportunity and capacity Beyond that, there was detailed discussion of the boundaries of other positive obligations arising from the family or household, from voluntarily incurred obligations, from situations of causal responsibility, and from civic responsibilities The argument for positive obligations stemming from civil responsibilities required several steps of contentious reasoning, and led to proposals for an offence of failure to report serious crimes, which some would oppose on the grounds that it might usher in a society dominated by suspicion, betrayal, intimidation and worse However, these issues have been discussed too little by criminal lawyers as well as by governments and their law reform agencies Chapter shows that the traditional common law reluctance to impose criminal liability for omissions is supported by some good reasons and some less good reasons Let us hope that the chapter acts as a stimulus for re-appraisal of the shape of the criminal law, particularly in respect of positive obligations on individuals It is evident that the chapters in this volume represent, not a description of existing Anglo-American criminal law and its supporting doctrines, but rather a set of normative arguments in favour of the state recognising the importance of respecting individuals as responsible agents when shaping its criminal laws (or, where they are not fully responsible agents, as with children, shaping its criminal laws to make due allowance for that fact), and correspondingly a set of normative arguments in favour of imposing clearer and, indeed, further positive duties on individuals which may result in criminal conviction for failure to carry them out Index accidental dangers see under personal responsibility obligations administrative offence 30 age issues majority age 44–5 minimum age 177–8, 194–5 sexual offences 74–5 anti-social behaviour orders 12, 13, 15, 29 autonomy 34–5 blameworthiness see culpability business/financial activities, duties 49–50 Canada 40, 110 care duties for dependents 70 direct contractual duty 50–1 ignorance of criminal law 94–5 for parents 45 person accepted into household 51–2 causal responsibility see personal responsibility obligations censure/punishment core principle 28–9 equal treatment 24–5 functional distinctions 8, 11–12 change of normative position see under culpability child abuse civic obligations 60–1, 64 death of child/vulnerable adult in one’s household 99–100, 107 child defendants bad behaviour, state’s response 176–9 basic issues/conclusions 173–4, 194–5 concept of childhood 174 consent 187–92 developmental immaturity 185 diminished responsibility 184–6 doli incapax 178, 187 duress 180–3 general defences 179–87 Gillick test 175, 177–8 horseplay exception 188–90 human rights 176–7, 210 ignorance of criminal law 186–7 mens rea 192–4 minimum age see under age moral agency 174–6 murder/attempted murder 180–2, 183, 185–6 negligence 193–4 normative expectations 179–80 offences against the person 187–90 provocation 183–4 recklessness 193 responsibility level 177–8 sexual offences 190–2 threshold tests 176–7 Children’s Hearings 178, 195 children’s problems, ignorance of criminal law 105–6 civic obligations 56–65 child abuse 60–1, 64 crime prevention 56, 62 elder abuse 61, 64 failure to report offences, criminalisation 60–5 ignorance of criminal law 57–8 law enforcement 56–7 money laundering, suspected 58 scope 43 spouse/civil partner immunities 63 terrorism see terrorism victim protection 62–3 civil contempt 12–13 civil partners, civic obligations, immunities 63 civil violation 30 compensation 9–10 competition law 10–11 compliance approach 22, 23, 25 conditional positive obligations see under voluntarily incurred obligations conditional sentences 12 content distinctions 2–5 category examples 3–5 historical contingents 2–3, 26–7 Human Rights Act 1998 2–3 omissions 3–4 principled debates professed principles core principles see under principled approach corporate wrongdoing 23–4 culpability assault distinctions 140–1, 144–5 autonomy 133–4, 135–7 change of normative position acting knowingly 146–7 concept 137–40 liability extent 140–6 correspondence principle 136 218 Index culpability (cont): families of offences 136n, 144–5, 147 felony-murder rule 131 intentionality 138–9 malice principle 139, 144–5 mens rea 132–3, 134–5, 136 misdemeanour manslaughter 130, 131–2 moderate constructivism 130, 135–7, 138, 139, 146, 147–8 moral agency 142, 148 proportionality 141, 143, 145 reverse onus provisions for exculpation risk-based possession offences 156–8 subjectivism 130–1, 132–5, 140, 141–2, 147 unlawful act theory 130, 131–2, 134, 138 developmental immaturity see under child defendants differential enforcement 21–2, 26 diminished responsibility see under child defendants distinguishing features see content distinctions doli incapax see under child defendants drug offences see under risk-based possession offences duress see under child defendants duties 33 awareness of situation 75–6 care see care duties citizens’ duties 39 easy rescue 40 families see family/household obligations impossibility defence 76–7, 78 key principles 40–2 least restrictive appropriate alternative 39–40 legal foundations 38–42 limiting considerations 40 opportunities/capacity principles 41, 215 priority of life principle 41 reasonableness 77–8 scope 42 situation requirements 75–8 state’s primary duties 38–9, 49, 79 urgency principle 41, 215 voluntarily incurred see voluntarily incurred obligations see also omissions easy rescue duty 40 endangerment see under risk-based possession offences equal treatment 20–6 basic principle 23 censure/punishment 24–5 compliance approach 22, 23, 25 core principle 29 corporate wrongdoing 23–4 differential enforcement 21–2, 26 family law 20–1 labour disputes 20 proportionality 19, 20, 26 regulatory offences 21–2 equivalence/neutrality thesis 31, 78 European Convention on Human Rights 6, 7, 13–14, 124, 196–7 Art rights 203–6 Art rights 200–3 Art rights 206–9 Art rights 198–200 positive obligations 197–8, 209–11 sexual offences 199–200, 211 European Court of Human Rights 6, 12–13, 124–5 child defendants 176, 210 explosives see under risk-based possession offences failures to act care for dependent 70 complicity in offence 70–1 dependents see under care duties intensity of criminalisation 69, 80 intervention where control 70–1 moral wrongness 79 to protect 47–8 to report 60–5, 69–70 to rescue persons in peril 98 scope 68–73 substantive offence 71–3 see also omissions false statements 3–4 families of offences see under culpability family law 20–1 family/household obligations care see under care duties failure to protect offences 47–8 guests 46–7 majority age see under age omissions 48–9 parents care for 45 obligations 43–5 scope 42, 43–9 spouses 45–6 felony-murder rule 131 financial/business activities, duties 49–50 firearms offences 91–2, 104 possession see under risk-based possession offences strict liability 116–17, 118, 119, 120–1 fraud offences 94 functional distinctions 8–13 censure/punishment 8, 11–12 civil contempt 12–13 compensation 9–10 competition law 10–11 Index 219 intellectual property law 10 key distinctions 11–12 negative obligations 12 tort law 8–10 Germany 97, 98, 125–6 Gillick test see under child defendants guests see under family/household obligations harm principle see under risk-based possession offences household obligations see family/household obligations Human Rights Act 1998 2–3 see also European Convention on Human Rights; European Court of Human Rights ignorance of criminal law accessibility of complete texts 103 accomplice liability 97 basic issues/conclusions 81, 106–8, 214–15 care duties 94–5 child defendants 186–7 children’s problems 105–6 civic obligations 57–8 common law duties 95–7 communication strategy 104–5 consequentialist arguments 83–4 death of child/vulnerable adult in one’s household 99–100, 107 defence issues 81–3, 106, 107 excusable ignorance 86–7, 92–3 failure to comply offences 88–9 failure to rescue persons in peril 98 fair warning 84–5, 97 false information offences 89 firearms offences 91–2, 104 fraud offences 94 mala in se 83, 90, 93, 107–8 marital immunity in rape 96 mens rea 84–5, 86 misconduct in public office 97–8 obstructing a regulatory officer 90 omissions 93–100, 106–7 basic issues 93–4 general offences 97–100 offences of commission 94–7 see also omissions in practice 102–6 reasonableness 108 regulatory offences 88–90 road traffic law 98 rule of law 84, 85, 87, 108 serious crimes 90–3 sexual offences 90–1, 92, 105–6 simplified versions of law texts 103–4 state’s obligations 100–2, 106 stay of proceedings 86 survey of offences 87–8 imprisonment see under strict liability inchoate liability see under risk-based possession offences individual autonomy 34–5 innocence presumption see risk-based possession offences, presumption of innocence intellectual property law 10 intrusiveness 35–6 Ireland 109, 110, 116, 126 labour disputes 20 majority age see under age mala in se 83, 90, 93, 107–8 malice principle 139, 144–5 mens rea child defendants 192–4 culpability 132–3, 134–5, 136 ignorance of criminal law 84–5, 86 risk-based possession offences 157–8, 160 strict liability 110, 112–14, 118, 121, 122 minimum age see under age minor wrongs 29–30 misconduct in public office 97–8 misdemeanour manslaughter see under culpability moderate constructivism see under culpability money laundering, suspected 58 moral agency see under child defendants motor vehicle activities, duties 50 murder/attempted murder see under child defendants negative obligations 12 negligence, child defendants 193–4 New Zealand 47, 66–7 offences against the person see under child defendants omissions basic issues/conclusions 32, 78–80, 215 blameworthiness/culpability 31, 36–7 causal issues 32–3 content distinctions 3–4 criminalisation 32–7 duties see duties failures see failures to act family/household obligations 48–9 ignorance see ignorance of criminal law, omissions individual autonomy 34–5 intrusiveness 35–6 opportunity/capacity 31–2 rule of law see under rule of law sexual offences see sexual offences 220 Index ownership/control obligations see under personal responsibility obligations parents see under family/household obligations personal responsibility obligations accidental dangers 53–4 ownership/control obligations 54–5, 70–1 scope 43 police cautions 22 possession offences see risk-based possession offences presumption of innocence see under risk-based possession offences principled approach basic issues 1–2 content see content distinctions core principles 28–30, 33–5 equal treatment see equal treatment function see functional distinctions minor wrongs 29–30 procedure see procedural distinctions protection see protections sentencing issues 26–8 summary 212–15 wrongdoing see seriousness of wrongdoing, assessment procedural distinctions 5–8 basic elements 5–6 European Court of Human Rights hybrid procedures 6–8 proportionality 19, 20, 26 core principle 29 protections failure to protect 47–8 principled approach 13–15 public authorities 14–15 public protection 117, 128–9 victims 62–3 wrongdoing 29 provocation see under child defendants public authorities functional distinctions 9–12 procedural distinctions 6–8 protections 14–15 public protection 117, 128–9 punishment/censure 8, 11–12 rape see sexual offences reasonableness duties 77–8 ignorance of criminal law 108 rule of law, omissions 68 recklessness see under child defendants regulatory offences compliance approach 22, 23 content distinctions equal treatment 21–2 functional distinctions 9, 10 omissions 42 sentencing issues 27–8 seriousness of wrongdoing, assessment 18–19 responsibility level see under child defendants risk-based possession offences act reus 153–5, 157, 160 basic issues/conclusions 149, 152–3, 170–2 core uses 167–8 and criminal law doctrine 170–2 culpability 156–8 drug offences 151 endangerment 163–9, 171–2 explosives 167 firearms offences 151–2, 164–8 future acts of others 162–3 harm principle 164, 166, 168–9 as health and safety/regulatory offences 169 inchoate liability 159–61 mens rea 157–8, 160 non-consummate offences 149–50 as omission 155–6 permissible link 165–6 presumption of innocence 158–9 prevention 150–1, 163–6 rule of law 170 sentencing issues 169–70 road traffic law 98 rule of law omissions duty-situations, uncertainties 67–8 fault element 68 judicial development 66–7 reasonableness 68 risk-based possession offences 170 strict liability 113–14, 115, 119–20 Scotland 173, 177–8, 183, 186, 187, 194 sentencing issues 26–8 risk-based possession offences 169–70 seriousness of wrongdoing, assessment 15–20 approach 19–20 gauging seriousness 17–18 harmfulness/culpability 16 importance 19 minor wrongs 29–30 regulatory offences 18–19 serious/non-serious, distinction 16–17 sexual offences 79 acting knowingly 146–7 age see under age issues child defendants 190–2 consent issues 73–4 human rights 199–200, 211 ignorance of criminal law 90–1, 92, 105–6 marital immunity in rape 96 strict liability 117, 120, 121–2 South Africa 85 Index 221 South Australia 47, 125 spouses civic obligations, immunities 63 duties to each other 45–6 state children’s bad behaviour, response 176–9 ignorance of criminal law, obligations 100–2, 106 positive obligations 212–14 primary duties 38–9, 49 strict liability basic issues/conclusion 109–10, 128–9 censure-based argument 114–15, 123, 124 constructive/non-constructive 111–12 content distinctions 3–4 culpability issues 127–8 defences 115–16 deterrence 119 disproportionate sentences 125–6 fault requirement 110, 112–16, 127–8 firearms see under firearms offences formal concept 110–11 harm issues 122 imprisonment 123–8 intoxication 115–16 loss of liberty 123–7 mens rea 110, 112–14, 118, 121, 122 moralistic argument 120–2 negligence 119–20 procedural distinctions 6, 12–13 proof difficulty 117–18 public protection 117, 128–9 risk 112 rule of law, argument 113–14, 115, 119–20 serious crimes 116–22 terminology 110–12 subjectivism see under culpability terrorism information about acts of 59–60 suspected financial offences 58–9 tort law 8–10 UN Convention on the Rights of the Child 44, 49, 194 United States 60–1, 125, 130 risk-based possession offences 151–2 unlawful act theory see under culpability victim protection 62–3 voluntarily incurred obligations 49–53 conditional positive obligations 52–3, 79 fault/criminalisation levels 53 financial/business activities 49–50 motor vehicle activities 50 scope 42–3, 49 vulnerable adult, death of in one’s household 99–100, 107 wrongdoing protection 29 see also seriousness of wrongdoing, assessment .. .POSITIVE OBLIGATIONS IN CRIMINAL LAW This book offers a set of essays, old and new, examining the positive obligations of individuals and the state in matters of criminal law The centrepiece... state’s positive obligations to put in place criminal laws to protect certain individual rights Introducing the volume is the author’s much-cited essay on criminalisation, ‘Is the Criminal Law a... Countervailing Interests and Differential Enforcement 20 1.7 Criminalisation and Sentencing 26 1.8 The Principled Core of Criminal Law 28 2:  Criminalising Omissions 2.1 The Place of Omissions in the Criminal