[*this post also appears on Ed Lines, my blog about learning in law and beyond.]
I’m writing this as a new academic year is about to begin. It seems no time since the last one. Scary. If you are about to embark on the study of criminal law for the first time, then this post is directed principally (though not exclusively) to you. It’s just a collection of thoughts about the subject, which I hope you might find it useful to bear in mind, and to reflect on. The list does not purport to be exhaustive, and I claim no great insight with any of these observations. Indeed, it may be that some of them are rather obvious or trite. I’m also sure that you could make at least some of these observations about other areas of law. I’m flagging them because they are things which can get lost or overlooked in the day to day of study.
- Criminal law is not a natural phenomenon. It reflects a variety of underlying purposes and philosophical priorities. These purposes and priorities are sometimes at odds with each other. It is the product of a range of (for example) historical, social, cultural, economic and political forces, and the exercise of human choice. This can mean that criminal law sometimes lacks coherence. It also means that the content of the criminal law is not inevitable. It could be different. Think about how and why you might like it to be different.
- Criminal justice institutions are imperfect. They sometimes get it wrong. The consequences of getting it wrong can be horrific.
- Criminal law restricts liberty (albeit often for perfectly sensible reasons). A society which professes to be liberal should – ideally – have as little criminal law as it can get away with. And no more. And it should be targeted smartly. In this context, criminal law should be a tool of (relatively) last resort. If you can deal with an issue without the use of criminal law, then liberal principles suggest you should do so.
- Criminal law is not just about serious offences. Many criminal law textbooks (including one of which I am a co-author) give an account of criminal law in which, arguably, far too much attention is given to the most serious offences. (This can be (imperfectly) defended – the serious offences may allow for the fullest exploration of fundamental legal ideas.) However, such offences, in reality, make up a very small proportion both of criminal offences which exist in the law and of criminal offences actually committed. You should not accept textbook accounts as complete pictures of the reality of criminal law.
- Criminal law is not just about what happens in courts. So much happens – or doesn’t happen – before then. It’s difficult to quantify exactly, but it’s been estimated that of all the criminal offences committed, around 2% result in a conviction. Think about what happens in relation to the other 98%.
- 'Criminal’ denotes behaviours in which ‘society’ or ‘the community’ or ‘the polity’ takes an interest. In that regard, it is not a label to be used lightly, and it is stigmatic. When an individual is accused of criminal behaviour they are called to give an account not just to other individuals but to society as a whole. In that sense, criminal law is presumptively public in nature. That is a big deal.
- The fact that something is a ‘criminal’ matter is procedurally significant, albeit that the boundaries of what counts as ‘criminal’ are uncertain. In ‘criminal’ cases, a suspect or defendant is entitled to certain protections which are not available in non-criminal contexts. Sometimes, it is claimed that conduct – such as terrorism – is too serious to be classified merely as a criminal issue: one upshot is that those accused of terrorism may have their rights curtailed in ways which would not be countenanced in conventional criminal law. Sometimes conduct which is of itself insufficiently serious to count formally as criminal – take anti-social behaviour for example – can lead to properly ‘criminal’ consequences – eg, not all anti-social behaviour is criminal, but breaching an Anti-Social Behaviour Order is a criminal offence.
- You can’t fully understand criminal law without thinking about power. I’ve referred above to an explanation of criminal law as referring to a range of behaviours which ‘society’ views as wrong. Think about who counts as society for these purposes and who has the power to determine the content of the criminal law. In this context, think about what is – and also what isn’t – criminalised; and how different aspects of the criminal law are and are not enforced.
- Studying criminal law can be distressing. If you find it distressing, talk to somebody – a lecturer or tutor, or a friend. I have written here about what I think some of the responsibilities of your lecturers might be in this context. Distress is, by definition unpleasant, but it is at least a sign of humanity.
- And finally, humanity. Don’t lose sight of it. Don’t be a humourless drudge, but be a little cautious about levity in relation to criminal law. After all, you are probably studying criminal law with people who have experienced it – as victims; witnesses or offenders. Criminal law is many things, but it tells the story of people, often in trouble, often in pain, often at their worst. It doesn’t help that the study of law focuses on the rules and principles that can be derived from individual cases (and this is not just criminal law), so that people’s individual stories and circumstances are subordinated to the identification of these rules and principles. It’s important for effective scholarship and legal practice that you can retain a critical and professional distance, but don’t let that mean that the people whose stories are the raw material of your learning become marginal and disappear.
Criminal law continues to fascinate, animate, frustrate, enthuse and anger me, often all at the same time. If those are things you are looking for in your learning (and while I hesitate to be prescriptive, I rather hope you might be), then I wish all of them for you. Good luck with your studies!