Introduction

The criminal law performs two primary functions. The first – what I will call the ‘core’ function – is to protect our rights by punishing those who deliberately violate them. The criminal law performs this core function when it punishes murderers, rapists and thieves. All these categories of people deliberately violate other people’s rights.  The second function  – what I will call the ‘secondary’ function – is to deter people from acting in ways that are contrary to the public interest. The criminal law performs this secondary function when it punishes polluters, drug dealers and public officials who act corruptly. None of these categories of people can be said to violate other people’s rights; but they do act in ways that are contrary to the public interest.

The language that I’ve used to describe these two functions of the criminal law might be taken to suggest that the vast majority of criminal offences are concerned with protecting our rights, and that these offences are orbited by a small number of criminal offences that are concerned to deter people from acting in an anti-social way. In fact, the opposite is true. It has been estimated that there are about 8,000 different criminal offences that may be committed in England and Wales. (That number is rapidly increasing all the time – more than 700 different criminal offences were created between 1997 and 2003.) No more than 100 of those offences are concerned with protecting our rights. I’ll call these offences ‘rights-based’ offences. All of the other criminal offences recognised in England and Wales exist to deter people from acting in ways that are contrary to the public interest. I’ll call these offences ‘public interest-based’ offences. Despite this disparity in the number of rights-based offences and public interest-based offences, almost all of the offences that a law student will study when he or she studies ‘Criminal Law’ will be rights-based in nature. He or she will spend virtually no time looking at offences that exist to deter people from acting in ways that are contrary to the public interest.

In order to establish that a defendant has committed a rights-based offence, it has to be shown that the defendant has violated someone else’s rights, and that he did so deliberately. In the language customarily used by criminal lawyers, it has to be shown that the defendant committed an actus reus (a wrongful act) with a mens rea (a wrongful mind). In contrast, in order to establish that a defendant has committed a public interest-based offence, it will always be necessary to show that the defendant acted in a way that was contrary to the public interest, but it will almost never be necessary to show that the defendant acted deliberately. For example, suppose the law said that a company that has polluted a river will only be guilty of an offence if it polluted it deliberately. Such a rule would not do anything to encourage a company to take safety precautions to ensure it did not pollute a nearby river. It would know that if it failed to take such precautions with the result that it polluted the river, it would face no criminal punishment as the pollution was not deliberate. What if the law said that a company that has polluted a river carelessly will be guilty of an offence? Such a rule would almost certainly encourage our company to take some precautions to ensure that it did not pollute the river, but it would probably do no more than the bare minimum to see that it did not pollute the river. It would bet that doing no more than the bare minimum would be enough to escape being successfully prosecuted for carelessly polluting the river. The only rule which would encourage the company to do as much as it could to avoid polluting the river would be one which said that a company that has polluted a river will be guilty of an offence if it could possibly have done something to avoid polluting the river. Under this strict liability rule, the company would know that unless it could prove that it had done everything possible to avoid polluting the river, every time it polluted the river, it would face a fine. It’s for this reason that most public interest-based offences do not require it to be shown that the defendant acted with any kind of mens rea. Instead, most public interest-based offences are strict liability in nature, holding the defendant liable unless it can be shown that the defendant did everything possible to avoid doing what the defendant did.

The meaning of intention

The most serious criminal offence recognised in English law is, of course, murder. This is a rights-based offence, protecting a person’s right that others not unjustly deprive them of their life. A will commit the offence of murder if:

(i) A’s actions cause another to die; and

(ii) when A performed those actions he had an intent to kill; and

(iii) A had no lawful justification or excuse for acting as he did.

(Note that this definition is not strictly accurate: to convict A of murder it will be enough to show that when A acted as he did, he had an intent to cause someone to suffer really serious bodily harm. However, to keep things simple this point about the law will be disregarded in the discussion below.)

So, for example, suppose that I attend a political rally carrying a gun. I intend to use the gun to kill the main speaker at the rally. A policewoman spots that I have a gun. She sidles up to me and attempts to take the gun away from me. In the ensuing struggle, the gun goes off accidentally and the policewoman is killed. Am I guilty of murder? Yes I am. Running through each of the elements that have to be made out before I can be found guilty of murder:

(i) My bringing a gun to the rally caused the policewoman to die – had I not brought the gun to the rally, she would not have died.

(ii) When I took the gun to the rally, I intended to kill the main speaker at the rally. (Note that it does not have to be shown that I intended to kill the very person who died as a result of my actions.)

(iii) I had no lawful justification or excuse for bringing the gun to the rally.

Now, let’s consider a different case. I need to raise a lot of money very urgently. I own a passenger plane that is insured for £20m. I plant a bomb on the plane just before it is due to take off. My idea is that when the bomb goes off, the plane will blow up and I will be able to collect the insurance on the plane. The bomb explodes 30 minutes after the plane took off, and all the passengers and crew on the plane are killed. Am I guilty of murder? There is no doubt that my action in planting a bomb on the plane has caused the deaths of the passengers and the crew, and there is equally no doubt that I had no justification or excuse for doing what I did. The real difficulty is in establishing that I had the mens rea for murder. When I planted the bomb, can I say that I intended to kill someone?

In principle, the answer is ‘No’. I intend to bring about a certain outcome if it is my aim or purpose to bring about that outcome. When I planted the bomb, my aim or purpose was not to kill anyone. Suppose that in the case we are considering, by some miracle no one was killed or seriously injured as a result of the plane blowing up. In such a case, would I have snapped my fingers and thought, ‘Confound it! My plans didn’t work out! The plane was blown up but no one was killed! That’s not what I wanted!’ Of course I wouldn’t have. I probably would have thought, ‘Thank goodness no one was killed. Now I can collect the insurance money on my plane with a clear conscience.’ So it was not my aim or purpose to kill anyone when I planted the bomb. It follows that, in principle, I should be acquitted of murder. When I planted the bomb I did not have an intent to kill.

However, this would not be regarded by most people as a satisfactory result. In this case, I have exhibited a callous disregard for the passengers’ and crew’s rights not to be unjustly deprived of their lives. As a result, most people would regard me as being just as bad as someone who acts with a clear intention to kill, such as an assassin. If I am just as bad as an assassin, people will think that I should be convicted of murder, just like the assassin. To achieve this result, the courts have twisted the definition of when someone can be said to have had an intent to kill. The courts say that a defendant will have had an intent to kill if: (1) he or she acted with the aim or purpose of killing someone; or (2) when he or she acted, he or she knew that it was virtually certain that someone would be killed as a result of his or her actions. Adopting this definition allows me to be convicted of murder in the case we are considering. When I planted the bomb on the plane I knew it was virtually certain that the passengers and crew on the plane would be killed as a result – so under the courts’ definition of intention I can be said to have had an intent to kill when I planted the bomb on the plane. And if I can be said to have had an intent to kill, then I am guilty of murder.

A good result? In this particular case, yes. However, while it is very common for the courts to twist legal rules – redefining their terms – in order to achieve the results that they want to achieve in particular cases, manipulating legal rules in this way is rarely a good idea in the long run. Consider whether the offence of murder has been committed in the following situation. You and I are mountaineering. We are attached by a rope. You are below me on the mountain. You lose your footing on the mountain and slip into a deep crevasse. I manage to keep my place on the mountain, but we are now stuck. The only thing stopping you from falling to your death is the rope that attaches you to me. I don’t have the strength to haul you out of the crevasse, and you cannot get any kind of footing that would allow you to climb out of the crevasse. Night is approaching and we will both freeze on the mountain if we remain where we are. In the end I decide to cut the rope that attaches you to me: it’s better that one of us (that is, you) should die than that we should both die. I cut the rope and you fall to your death. Am I guilty of murder? My cutting the rope undoubtedly caused your death. But when I cut the rope, did I intend to kill you? If we define ‘intention’ in the way it is normally defined, I did not intend to kill you. When I cut the rope it was not my aim or purpose to kill you. Had you by some miracle survived your fall, I would have been delighted. I would not have snapped my fingers and thought, ‘Confound it! I thought I’d finished you off! Now I’m going have to find some other way of getting rid of you!’ However, according to the courts’ definition of intention, I did have an intent to kill in this situation: while my aim or purpose in cutting the rope may not have been to kill you, I did know at the time I cut the rope that it was virtually certain that you would die as a result.

Would it be a good result to find me guilty of murder? Of course not. I don’t exhibit anything like the callous disregard for people’s rights to life that is shown by either the assassin or by the plane bomber in the case we were considering above. But if my actions caused your death, and I had an intent to kill you when I performed those actions, then I will be guilty of murder unless the courts recognise that I had a lawful justification or excuse for my actions. So – what sort of justification or excuse can I rely on in this situation? The most obvious one is a defence of necessity: ‘The circumstances meant that I did the right thing when I cut the rope. If I had not cut the rope, both of us would have died. By cutting the rope, I ensured that at least one of us (that is, me) survived.’

So – problem solved. We can recognise a defence of necessity in this case, and thereby ensure that I am not convicted of murder. But if we do that, what does that imply for the following case? Bob is wheeled into Dr Strange’s hospital with a rare blood condition that threatens to kill him in the next two hours. The only cure is to give Bob a complete blood transfusion, replacing all of his blood with new blood. Unfortunately, there are no blood bags available of the same blood type as Bob’s. Another patient, Eric, is in Dr Strange’s hospital. He suffers from cancer. His cancer is incurable and it is predicted he probably only have six more weeks to live. Eric’s blood type is the same as Bob’s. Dr Strange orders that Eric be sedated, and all his blood drained from his body and given to Bob. Eric dies as a result of this treatment. Is Dr Strange guilty of murder? He has the actus reus and mens rea of murder – but can he take advantage of a defence of necessity here to establish that he had a lawful justification or excuse for doing what he did? If we allow a defence of necessity in the mountaineering case set out above, it is hard to see why we would not allow one here. Why could Dr Strange not argue, ‘The circumstances meant I did the right thing when I drained Eric’s blood from his body. If I had not done that, both Bob (immediately) and Eric (eventually) would have died. By draining Eric’s blood from his body, I ensured that at least one of them (that is, Bob) survived.’

I think most people would be unhappy if Dr Strange were allowed to escape a murder charge in this situation by relying on a defence of necessity. But it would seem that we have to allow him such a defence if we allow such a defence to be raised in the mountaineering case. Of course, we only have to allow such a defence to be raised in the mountaineering case because the courts have ruled that a defendant will be held to have had an intent to kill if he acted as he did knowing that death was a virtually certain consequence of his actions. If we got rid of that rule and returned to the idea that you can only be said to intend the consequences of your actions if it was your aim or purpose to produce those consequences, then we could find that there was no murder in the mountaineering case because there was no intent to kill. However, if we find there was no intent to kill in the mountaineering case, then we would have to find there was no intent to kill and therefore no murder in the plane bomber case and in Dr Strange’s case as well. (Dr Strange could argue that it was not his aim or purpose to kill Eric when he drained Eric of his blood – had Eric by some miracle survived without his blood, he would have been delighted.)

We seem to be stuck. If we adopt a strict line on when someone can be said to have had an intent to kill, some defendants who deserve to be convicted of murder will be acquitted. If we relax the definition of when someone can be said to have had an intent to kill – and say that you will have an intent to kill if you act knowing that death is a virtually certain consequence of your actions – then you will bring within the scope of the law of murder people who do not deserve to be convicted of murder. The only way of saving them from being convicted of murder will be to provide them with defences to being charged with murder; which defences may then be taken advantage of by people who do deserve to be convicted of murder.

Is there any way out of this mess? One way would be to redefine when someone is guilty of murder and say that someone will commit the crime of murder if he acts in a way that causes another’s death and at the time he acted he exhibited a callous disregard for other people’s rights not to be unjustly deprived of their lives. Under this rule, the plane bomber and Dr Strange would be convicted of murder. Both exhibited a callous disregard for other people’s rights to life in acting as they did. In contrast, I would be acquitted of murder for cutting the rope in the mountaineering case set out above. In that case, I did not exhibit a callous disregard for your right to life in acting as I did.

Morality and the criminal law

The above discussion shows what an important role is played by considerations of morality in developing the criminal law. The perception that a particular person is just as bad as someone who is clearly guilty of murder leads the courts to reshape the rules on when someone can be found to have an intent to kill. And when those rules operate in such a way as to threaten that a defendant who does not deserve to be convicted of murder will be convicted, the courts respond to that threat by reshaping the law on when someone can be said to have had a lawful justification or excuse for acting as he did, and provide that someone with a defence.

Should considerations of morality play an even greater role in the development of the criminal law? Should the criminal law take on a third function – that of encouraging people to act morally, by punishing them for acting immorally? The Victorian philosopher John Stuart Mill thought that it should not. In his book On Liberty (published in 1859), he argued:

‘[T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right…’

The modern consensus is that the criminal law should observe Mill’s ‘harm principle’, so that conduct should only be criminalised if it violates other people’s rights or if it harms the public interest. The fact that acting in a particular way is immoral does not give us sufficient reason to make it a criminal offence to act in that way. Having said that, two fairly recent cases may be interpreted as breaking with this consensus.

R v Brown

In R v Brown [1994] 1 AC 212, a group of sado-masochists were charged with committing offences under ss 20 and 47 of the Offences Against the Person Act 1861. (Someone will commit an offence under s 20 if he maliciously wounds or inflicts grievous bodily harm on another. Someone will commit an offence under s 47 if he commits an assault on another person that occasions actual bodily harm.) The defendants deliberately inflicted pain on each other by doing such things as driving nails into each other’s bodies; burning each other with candles; and cutting each other with knives. Each of the defendants fully consented to having these things done to them.

The House of Lords had to decide whether the defendants had committed offences under the 1861 Act in acting as they had. By a majority of three to two, the House of Lords decided that they had. Some of the judgments of the majority give the impression that they thought the defendants should be punished because they had acted immorally. Lord Templeman remarked, ‘Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.’ Lord Lowry argued that no exemption from the 1861 Act should be made for people who ‘wish to satisfy a perverted and depraved sexual desire.’ In contrast, Lord Mustill argued in dissent that the defendants should not be convicted. He based himself on Mill’s harm principle: ‘[Questions as to whether the activities of the members of the group were right or wrong] are questions of private morality;…the standards by which they fall to be judged are not those of the criminal law;…if these standards are to be upheld the individual must enforce them upon himself…or have them enforced against him by moral pressures exerted by whatever…community to whose ethical ideals he responds.’

A couple of arguments might be made in favour of the view that convicting the defendants in Brown did not violate Mill’s harm principle. Neither of them are convincing.

(1) Violation of rights. At first sight, it seems that the activities in Brown did not violate the rights of those who were the object of those activities. Rights can almost always be waived. For example, I have a right that you not smash up my car. But if I invite you to smash my car and you do so, you will not have violated my rights. I will have waived my right that you not smash up my car.

In a similar way, it can be argued that each of the sado-masochists in Brown waived their rights not to be physically harmed by the other sado-masochists; so whenever a particular defendant physically harmed a fellow sado-masochist, he did not violate that sado-masochist’s rights. However, this argument overlooks the fact that some rights are inalienable. They cannot be waived. It is arguable that one’s right not to be treated in a cruel and inhumane manner is one such right. If this is correct, then it can be argued that every time one of the sado-masochists in Brown was injured by a fellow sado-masochist, his rights were violated. So punishing the defendants in Brown fulfilled the criminal law’s core function – that of protecting our rights by punishing those who deliberately violate them.

The weakness in this argument is that it is not clear why one’s right not to be treated in a cruel and inhumane manner should be inalienable. Nor is it clear why the criminal law should go out of its way to protect rights that the right-holders are plainly not interested in having.

(2) The public interest. The majority in Brown placed a good deal of stress on the harm that might be done to the public interest if activities such as those that went on in Brown were allowed to continue. Lord Jauncey of Tullichettle pointed out, ‘it would appear to be good luck rather than good judgment that…prevented serious injury occurring [in this case]. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is HIV positive or who has Aids can infect another…’ Underlying this statement is a concern that if someone was seriously injured as a result of engaging in sado-masochistic activities, the public would have to pick up the tab for treating his injuries on the National Health Service (NHS). It follows that engaging in sado-masochistic activities is contrary to the public interest, and in punishing those who engage in such activities, the criminal law is fulfilling its secondary function – that of deterring people from acting in ways that are contrary to the public interest.

If this argument in favour of the decision in Brown were correct, then many other activities could justifiably be criminalised. As Lord Mustill pointed out in Brown, the same argument could be used to justify criminalising homosexual relations among men, as this is the principal cause of the spread of HIV and Aids in the UK. It could also be used to justify making criminals of people who spend their spare time skateboarding or mountain-climbing or smoking cigarettes in private. In effect, if this argument in favour of criminalising the activities in Brown were accepted, the existence of the NHS in the UK would make it justifiable to deprive people of the freedom to decide what to do with their own bodies. The socialisation of heath care in the UK would have the effect of justifying the socialisation of people’s bodies. This cannot be right. The fact that the State has created a national health care system cannot be invoked by the State as a reason for taking away from people liberties that they would have enjoyed in the absence of such a health care system.

So it seems that the House of Lords’ decision in Brown did violate Mill’s harm principle. In Brown, the criminal law was used to force people to act morally – no other explanation of the case makes sense.

R v Hinks

In R v Hinks [2001] 2 AC 241, a 38-year-old called Karen Hinks befriended a 53-year-old man called John Dolphin. Dolphin was a naïve, trusting man of limited intelligence. Hinks became his principal carer. Dolphin had substantial savings and money inherited from his father in a building society account. From April to November 1996, Hinks and Dolphin went to Dolphin’s building society virtually every day. Dolphin would withdraw £300 each time, and then give the money to Hinks. By the end of the six months, Dolphin had given Hinks approximately £60,000.

Hinks was convicted of theft and the House of Lords upheld her conviction, by a three to two majority. The majority found that all the elements of the offence of theft were present in Hinks’ case. A defendant will commit the offence of theft if he dishonestly appropriates property belonging to another with an intention permanently to deprive that other of that property. It was found that when Hinks accepted Dolphin’s money, she had appropriated property belonging to Dolphin. It was further found that Hinks had acted dishonestly in accepting Dolphin’s money and that when she accepted that money, she had an intent permanently to deprive Dolphin of that money.

On the facts of Hinks, the decision to convict Hinks of theft was unobjectionable. The law grants people of limited intelligence a right that other people not take advantage of their weakness, and will set aside any gifts or transactions that are the product of a violation of that right on the ground that the gifts or transactions are ‘unconscionable’. So Dolphin had a right that Hinks not exploit his limited intelligence, and Hinks violated that right when she prevailed upon him to give her £60,000. So punishing Hinks for theft did not breach Mill’s harm principle: Hinks was straightforwardly punished for deliberately violating Dolphin’s rights.

However, the real danger of the decision in Hinks is that it opens the door to people being convicted for theft whenever they dishonestly accept a gift or act dishonestly in buying something. For example, consider the following two cases:

(1) Freddie is in love with Linda. Linda does not care for Freddie, but she does not make her true feelings clear to Freddie because he lavishes so much attention and, more importantly, so many gifts on her. On Linda’s 21st birthday, Freddie gives Linda a diamond necklace, worth £20,000.

(2) Howard walks into Bill’s antique shop where a painting is on sale for £50. Howard recognises that the painting is by Rembrandt, and is in fact worth £2m. Howard gives Bill £50 for the painting on the spot and walks out of the shop with it.

If we find that Linda’s and Howard’s conduct in these situations was ‘dishonest’ then the decision in Hinks suggests that each of them will be guilty of theft. However, neither of them has violated anyone’s rights in acting as they did. The law does not confer on Freddie a right that Linda not take advantage of his infatuation for her. The law says that in affairs of the heart, Freddie has to look after himself. If Linda makes a fool of him, then that is his look-out. Similarly, the law does not confer a right on Bill that Howard not take advantage of Bill’s ignorance of the true value of his goods to snap up a bargain for himself. If Bill ends up selling a painting to Howard for far less than it is actually worth, then that is his look-out.

So if Linda and Howard are convicted of theft in the above situations, even though they did not violate anyone’s rights, the law will in effect punish them simply for acting ‘dishonestly’. In so doing, the law will violate Mill’s harm principle, under which the mere fact that someone’s conduct is immoral (or, here, ‘dishonest’) is not enough to justify criminalising it.

Evaluating Mill’s harm principle

Of course, the fact that John Stuart Mill thought that the criminal law should not be used to force people to act morally does not establish that the criminal law should not be used in this way. Why shouldn’t the criminal law be used to force people to act morally? Three reasons can be given.

First, it is not clear what the point is of forcing someone to act morally. Let’s assume that it is immoral for Wendy to cheat on her husband by sleeping with Ethan. Threatening to punish Wendy if she sleeps with Ethan may deter her from cheating on her husband, but forcing Wendy not to cheat on her husband will not make her into a better or wiser person. Instead, it will simply make her feel cowed and resentful.

Secondly, in today’s society there is no consensus on what sort of behaviour is moral and what sort of behaviour is immoral, particularly in the areas of sexual activity and drug taking. There is not even a consensus on how to resolve disagreements over what sort of conduct is moral or immoral. Given this, the idea of using the criminal law to force people to act morally is particularly problematic. Whose view of what is moral and immoral should govern? The Church’s? The State’s?

Thirdly, criminalising behaviour that is commonly believed to be immoral may have the effect of entrenching mistaken moral beliefs. For example, in parts of the United States it was at one time thought that it was immoral for a black man and a white woman to go out with each other. Had such behaviour been criminalised in the United States, it would have been very hard to challenge this thoroughly evil belief. Indeed, the lack of examples of black men and white women going out with each other that would have been produced by criminalising such behaviour would have encouraged people to think that there was indeed something wrong, or unnatural, in black men and white women going out with each other.

In light of these arguments, it seems that Mill was right. The criminal law should not play a role in forcing people to act morally, but should instead confine itself to performing the two functions identified at the start of this chapter – that of punishing people who deliberately violate other people’s rights, and that of deterring people from acting in ways that are contrary to the public interest.