Ashworth, Andrew. "Is the criminal law a lost cause?". Law Quarterly Review, Vol.116 (2000): 225-256.

Ashworth, Andrew. "Is the criminal law a lost cause?". Law Quarterly Review, Vol.116 (2000): 225-256.

• The contemporary process of creating criminal law is confused and poorly organized, with little sense going into the creation and duplication of offenses by Parliament, or more commonly by administrative bodies. Governments still view criminal law as an important way of managing society, but from a moral and social perspective, the gravity and purpose of criminal law has been lost (225).
• The government claims that it was a set of principles which underpin the establishment of criminal law, but the actual use of these principles is questionable. These principles are that criminal law is only enacted when necessary, enforceable, legally sound, and appropriate for the offense (229).
• English law has not been developed based on principled establishment of laws founded in moral or ethical foundations, but instead is cobbled together based on public and special interest pressure for the criminalization of certain acts. Social issues, like abortion and homosexuality, which receive extensive debate regarding criminalization are rare exceptions (226-227).
• "Glanville Williams concluded that there is no workable definition of a crime in English law that is content-based: only the different procedures of criminal, as distinct from civil, cases can serve as a reliable distinguishing mark" (226).
• English criminal law mixes crimes of action with crimes of omission or negligence, making a wide variety of both actions and non-actions subject to criminal courts (227-228). Most new laws criminalize omission (228).
• The crimes of omission, which have become increasingly common, do not mix well with older English crimes, and flaunt several key characteristics of the English court system. Most do not have mens rea requirements and require the accused to prove innocence, both traits which run counter to traditional British practices, esp. innocence until guilt is proven (228).
• It is difficult to define what constitutes a crime, leading Dr. Glanville Williams to support a formalistic definition in which a crime is any act which can be prosecuted in a criminal court. The European Court of Human Rights has defined criminal courts as courts that have state prosecutors, impose mens rea requirements, and deliver severe punishments (230).
• The combination of these definitions does not apply well in the UK, where many offenses are strictly based on liability, without requiring intent. Additionally, many civil offenses carry heavily penalties, and in England and Wales, criminal cases can have private prosecution and civil cases public, blurring the distinction between criminal and civil courts (230-231, 236).
• Some branches of law demonstrate the artificiality of distinctions between criminal and civil law, like tort law. In criminal law, fines are imposed to discourage repeating criminal acts, whereas in tort law, fines are imposed to cover damages caused. Both systems, criminal and civil, impose fines, only differing in the reason for imposition (233-234).
• The author argues that, despite the decrease in distinction between civil and criminal law, and the number of notable exceptions, the rules established above still generally apply (236).
• Public censure and the severity of punishment are the two defining characteristics of criminal liability. The ramifications of these punishments are why criminal procedure demands certain protections that do not exist in civil court (237-238).
• The author argues that cases operating under civil law which set strict punishments, such as lengthy imprisonment and public censure for contempt of court, are unjust because they flaunt the logic of severity which demands that serious accusations require protection for the accused, as in criminal court (239-240).
• The notion that criminal law be reserved for serious wrongdoing raises questions of what constitutes severity. Generally, severe crimes causes significant harm to either the victim or society and are performed intentionally. Thus, criminal law and its protections should only be applied to intentional acts that cause significant harm (240).
• The author admits that it is often difficult to distinguish between intentional and accidental harms, and that notions of harm vary between and within society. However, the court system exists to distinguish between the two (242).
• Regulatory offenses, meaning those performed by specific persons or business entities in performance of their duties, often carry very significant criminal penalties, despite not always belonging to the criminal system. This suggests that they might need to be reduced in reference to the equivalent 'normal' crimes, like theft (243).
• Regulatory agencies often prosecute their 'special' crimes differently than the way 'ordinary' crimes are prosecuted, usually by negotiation compliance rather than strict prosecution. This different treat for similar acts by regulatory and criminal enforcement agencies potentially subverts the principle of equal treatment (246-248).
• The difference in law enforcement techniques used by criminal and regulatory agencies can be potentially justified by results, as in the claim by regulators that their approach is more effective with businesses, even though it is different than prosecution of 'regular' crimes (247-248).
• Cost is also used as a common justification for different responses to criminal acts, as in the case of corporate or individual fraud. Prosecuting corporate fraud is immense expensive and difficult, and often not worth the cost if a substantial amount can be regained via negotiation (248-249).
• "Is it not [...] monstrously unfair and intolerable that people who steal from shops are dragged through the criminal courts and subjected to liberty-restricting penalties, when others (whether fraudsters or companies) who culpably inflict far greater harm are dealt with outside the criminal law" (249).
• Some scholars, like Dr. Braithwaite, argue that this is acceptable only because criminal law should generally be less punitive, and increasing penalties for corporate would thus cause harm. The author disagrees, noting that the current situation subverts the principle of equal treatment and is therefore unacceptable (249-250).
• The severity of the harm done by crimes should be the primary determinate of the punishments applied and the context, criminal or civil, in which they are prosecuted. Any other system, such as special methods of regulation, is unacceptably unjust (250-251).
• Generally, consistency and equal treatment of like cases in criminal law is a positive trait, but there are some circumstances were it may be overruled. Criminal acts committed in the context of labor-management relations might be treated differently to preserve union rights, and crimes committed within families should take into account the integrity of the family (245-246).
• These potential exceptions, however, should not automatically overrule the rule of equal treatment. It must be the prerogative of the legislature to formalize the circumstances when other concerns trump consistency (246).
• The current English system of ensuring consistency in the treatment of crimes is largely guaranteed through maximum penalties determined by Parliament. The method of establishing these maximums, however, is haphazard and does not operate in accordance with the principle that the most severe crimes deserve the harshest punishments (252).
• More useful than maximum penalties in determining the appropriate punishments in different cases would be guidelines for general sentencing, established by the judiciary. These would simultaneously support consistency and allow for a ranking of punishments based on the severity of crimes (252).
• "Criminal law is indeed a lost cause, from the point of view of principle. The Government's purported criteria for creating new crimes are not followed in practice, nor have they been in the recent past. [...] The plain fact is that governments often take the view that the creation of a new crime sends out a symbolic message [...] even though the new crime fails to satisfy Lord Williams' criteria on one or more grounds" (253).
• The author argues that criminal law should only be applied in cases of serious wrongdoing, that it should be enforced in accordance with the principle of equal treatment, that accused persons should be given legal protections in accordance with EU human rights standards, and that punishments should be ranked by severity of crime (253-255).