Dennis J Baker

A Critical Evaluation of the Historical and Contemporary Justifications for Criminalising Begging

In evaluating the historical and contemporary justifications for the offences of vagrancy and begging, the first part of this essay focuses on the historical roots of the older English legislation. Thereafter, the contemporary justifications for criminalising homeless beggars are considered and it is argued that there is no normative justification for criminalising beggars in the 21st century. The article traces the history of the offenses to demonstrate that the rationale for the enactment of the earlier laws is no longer relevant. Furthermore, it demonstrates the justifications for maintaining that such offences are invalid and contrary to constitutional justice. The 750-year-old offence of begging was enacted in a bygone age. It is no longer an appropriate response for dealing with indigence. It is therefore constructive to trace the legislative history of the older vagrancy offences in order to define the purpose of such prohibitions and the harms that they were originally designed to counter and to contrast that with the contemporary homelessness problem. In conclusion, it is suggested that there is no historical or normative justification for maintaining this offence in the 21st century. The continued criminalisation of begging violates the beggars fundamental right not to be criminalised.

Constitutionalizing the Harm Principle

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, so she should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for sending an offender to jail are: (1) that the offenders actions have (or risk) bad consequences that are sufficiently harmful to make her commensurately deserving of penal detention; and (2) that the offender culpably (that is, with a state of mind somewhere along the intentional/reckless/gross negligence continuum) chose (aimed or attempted) to bring about those bad consequences or did so with reckless indifference. The lawmaker would need to demonstrate from the ex ante perspective that proposed offenses carrying jail sentences are a proportionate and fair way of dealing with the wrongs involved. Because jail (including short sentences of a few days) involves hard treatment (seriously harmful consequences for the prisoner) harm to others would be the only bad consequence of sufficient weight to justify a jail sentence. Jailing people for wrongful behavior that has harmless consequences would be an unjust and disproportionate response. In terms of understanding imprisonment (a physical deprivation of liberty) in the United States, it is better to refer to the Eighth Amendment of the Constitution than to the Due Process Clause. The Eighth Amendment, if read morally, could be invoked to strike down laws that carry prison sentences for wrongs that do not result in harm to others. This is because harming a person by subjecting her to the hard treatment that is involved in serving a jail term would be a disproportionate response unless the wrongdoer inflicted equivalent harm on others. I argue, that the Eighth Amendment should be interpreted in a way that accords with its overall moral aim or purpose. The Amendments overall moral aim is to ensure that the state does not inflict unjust, oppressive, or disproportional punishments on its citizens.

Collective Criminalization and the Constitutional Right to Endanger Others

The U.S. Supreme Court recently held that the Second Amendment of the Constitution protects an individuals right to bear and keep arms (at least in the home). The Courts opinion will stimulate further debate for decades to come, as gun-related injuries and fatalities are as prevalent as ever in the United States. The question for present purposes is whether Justice Scalias interpretation (although a seemingly reasonable interpretation in legalistic terms) can be reconciled with normative justice. I do not intend to add to the vast hermeneutic literature that debates whether the constitutionalized legal right to bear arms should have been interpreted as an individual right. Instead, I will examine the wider normative implications of criminalizing remote harms in order to achieve utilitarian goals. Arguably, blanket prohibitions against firearm possession interfere with a firearm possessors fundamental rights in a more basic way than is envisaged by the Second Amendment. It is one thing to be denied a right to possess firearms for recreational and self-defense purpose; it is something entirely different to be criminalized for the harmful choices of others. The fundamental issue of justice on which I focus is not the constitutional right to have a firearm for recreational or self-defense purposes, but the right not to be criminalized and subjected to penal censure for engaging in blameless and harmless conduct (mere possession) simply because others choose to commit criminal wrongs (that is, misuse firearms).

The sanctity of life and the criminal law : the legacy of Glanville Williams

Described by the New York Times as ‘Britain’s foremost scholar of criminal law’, Professor Glanville Williams was one of the greatest academic lawyers of the twentieth century. To mark the centenary of his birth in 2011, leading criminal law theorists and medical law ethicists from around the world were invited to contribute essays discussing the sanctity of life and criminal law while engaging with Williams’ many contributions to these fields. In re-examining his work, the contributors have produced a provocative set of original essays that make a significant contribution to the current debate in these areas.1. Glanville Llewelyn Williams, 1911-97: a biographical note Peter Glazebrook 2. Glanvilles inspiration George P. Fletcher 3. Preventive orders and the rule of law Andrew Ashworth 4. The specialness of the general part of the criminal law Michael S. Moore 5. Four distinctions that Glanville Williams did not make: the practical benefits of examining the interrelation among criminal law doctrines Paul H. Robinson 6. Reflections on Dudley and Stephens and killing the innocent: taking a wrong conceptual path Joshua Dressler 7. Intention revisited Antony Duff 8. A disintegrated theory of culpability Andrew Simester 9. Sir Michael Foster, Professor Williams and complicity in murder Sir Roger Toulson 10. Mental disorder and sexual consent: Williams and after John Stanton-Ife 11. Williams v. Kamisar on euthanasia: a classic debate revisited John Keown 12. The failure of the defence of necessity as a mechanism of legal change on assisted dying in the common law world Penney Lewis 13. The duty to preserve life and its limits in English criminal law Antje du Bois-Pedain 14. Professing criminal law A. T. H. Smith.

Prosecuting Complicity: The CPS Legal Guidance on Secondary Liability

In this paper I try to outline the implications of the decision in R v Jogee for practice. I try to explain what the substantive law now requires and how that should be implemented in practice. I argue that particular care needs to be taken so that the profession properly understand and implement the substantive law as recognised in R v. Jogee. I shall try to explain the conceptual distinction between a fundamentally different act and a supervening act. A supervening act cancels out an earlier act, but a fundamentally different act does not necessarily involve a cancelling out. Intentional g.b.h. is a supervening act when the accessory only intended the perpetrator to perpetrate an act resulting in a.b.h. The g.b.h. should cancel out the a.b.h. since the perpetrator has departed from the plan and perpetrated a different act to what was originally intended by the parties. Thus, it is not possible to reconcile the Supreme Court’s obsequiousness towards the supervening act rule with its finding that manslaughter can be an alternative to murder for accessories when the perpetrator has inflicted g.b.h. resulting in V’s death, if the accessory intended a.b.h. be inflicted upon V. Additionally, manslaughter is not a lesser included offence to murder and thus such a conviction should not be available where P perpetrates a murder not intended by the accessory; instead, the accessory should be charged with the inchoate offence for attempting to encourage the lesser crime. It shall also be argued that conditional intention is only an issue in certain factual scenarios such as where it is not certain which crime will be perpetrated or where a crime is intended upon some contingency arising. Intention is intention whether it depends on a condition or not. Finally, it will be argued the spontaneous outbreak of multi-handed violence cases will pose great challenges as far as proof of intentional encouragement is concerned, but that can be overcome simply by charging such cases under sections 44 or 45 of the Serious Crime Act 2007.

Unlawfulness’s Doctrinal and Normative Irrelevance to Complicity Liability: A Reply to Simester

In this essay I shall try to show that there is normative nor doctrinal foundation for the extended joint enterprise doctrine. I shall argue that the “unlawfulness” justification that has been invoked to justify the extended joint enterprise has no doctrinal basis in English law and is also normatively vacuous. Almost every case concerning common purpose complicity scenarios where unlawfulness has been an issue hinge on the doctrine of constructive crime, so I shall attempt to show that those who are invoking that doctrine of unlawfulness to support their normative case for extended joint enterprise liability are working from a mistaken doctrinal premise, because the doctrine of constructive crime in the development of the law of complicity was limited to homicides, whereas complicity’s doctrine of common intent applied to all unlawful joint enterprises. Furthermore, it is contended that unlawful agreements (conspiracies) in themselves do not supply a normative justification for this sort of complicity, even when the agreement is consummated, because the accessory does not take an equal normative position in an unintended collateral crime that is merely foreseen as a possibility.

Lesser Included Offences, Alternative Offences and Accessorial Liability

In this essay I shall examine when an alternative offence and also a lesser-included offence is available for an accessory. Particular reference will be made to the offences of manslaughter and murder. It shall be argued that the decision in R v Jogee and Ruddock v The Queen is wrong as far as it holds that an accessory can be liable for manslaughter when the principal has been convicted of murder, because it is necessary to prove that the accessory intended the principal to perpetrate the actus reus of the relevant offence with the requisite mens rea for that offence. In such a scenario the accessory does not intentionally assist or encourage the more serious offence (murder), so she cannot be derivatively liable for it, and the principal does not perpetrate the less serious offence (manslaughter), so there is no offence of manslaughter for the accessory’s liability to derive from. The accessory only attempts to assist or encourage the principal to engage in conduct that has the potential to form the conduct element of constructive manslaughter. Such a conviction would rest on a presumption of participation in a result crime, when no result was in fact caused by the non-perpetrated crime (manslaughter), but instead the result was caused by an alternative more serious crime (murder), which was in fact perpetrated. If the principal had done the actus reus that the accessory intended (i.e. unlawfully inflict actual bodily harm), the victim most likely would not have been killed and it is pure speculation to suggest that the victim could have been killed by actual bodily harm as opposed to the act of grievous bodily harm or an act of intentional killing, which in fact killed the victim. It shall be argued that in such cases it is best to prosecute the putative assister or encourager under ss 44 or 45 of the Serious Crime Act 2007, for attempting to assist or encourage a potential aggravated assault.

The Sanctity of Life and the Criminal Law: Frontmatter

Described by the New York Times as ‘Britain’s foremost scholar of criminal law’, Professor Glanville Williams was one of the greatest academic lawyers of the twentieth century. To mark the centenary of his birth in 2011, leading criminal law theorists and medical law ethicists from around the world were invited to contribute essays discussing the sanctity of life and criminal law while engaging with Williams’ many contributions to these fields. In re-examining his work, the contributors have produced a provocative set of original essays that make a significant contribution to the current debate in these areas.1. Glanville Llewelyn Williams, 1911-97: a biographical note Peter Glazebrook 2. Glanvilles inspiration George P. Fletcher 3. Preventive orders and the rule of law Andrew Ashworth 4. The specialness of the general part of the criminal law Michael S. Moore 5. Four distinctions that Glanville Williams did not make: the practical benefits of examining the interrelation among criminal law doctrines Paul H. Robinson 6. Reflections on Dudley and Stephens and killing the innocent: taking a wrong conceptual path Joshua Dressler 7. Intention revisited Antony Duff 8. A disintegrated theory of culpability Andrew Simester 9. Sir Michael Foster, Professor Williams and complicity in murder Sir Roger Toulson 10. Mental disorder and sexual consent: Williams and after John Stanton-Ife 11. Williams v. Kamisar on euthanasia: a classic debate revisited John Keown 12. The failure of the defence of necessity as a mechanism of legal change on assisted dying in the common law world Penney Lewis 13. The duty to preserve life and its limits in English criminal law Antje du Bois-Pedain 14. Professing criminal law A. T. H. Smith.

The Sanctity of Life and the Criminal Law: Index

Described by the New York Times as ‘Britain’s foremost scholar of criminal law’, Professor Glanville Williams was one of the greatest academic lawyers of the twentieth century. To mark the centenary of his birth in 2011, leading criminal law theorists and medical law ethicists from around the world were invited to contribute essays discussing the sanctity of life and criminal law while engaging with Williams’ many contributions to these fields. In re-examining his work, the contributors have produced a provocative set of original essays that make a significant contribution to the current debate in these areas.1. Glanville Llewelyn Williams, 1911-97: a biographical note Peter Glazebrook 2. Glanvilles inspiration George P. Fletcher 3. Preventive orders and the rule of law Andrew Ashworth 4. The specialness of the general part of the criminal law Michael S. Moore 5. Four distinctions that Glanville Williams did not make: the practical benefits of examining the interrelation among criminal law doctrines Paul H. Robinson 6. Reflections on Dudley and Stephens and killing the innocent: taking a wrong conceptual path Joshua Dressler 7. Intention revisited Antony Duff 8. A disintegrated theory of culpability Andrew Simester 9. Sir Michael Foster, Professor Williams and complicity in murder Sir Roger Toulson 10. Mental disorder and sexual consent: Williams and after John Stanton-Ife 11. Williams v. Kamisar on euthanasia: a classic debate revisited John Keown 12. The failure of the defence of necessity as a mechanism of legal change on assisted dying in the common law world Penney Lewis 13. The duty to preserve life and its limits in English criminal law Antje du Bois-Pedain 14. Professing criminal law A. T. H. Smith.

The Sanctity of Life and the Criminal Law: List of contributors

Described by the New York Times as ‘Britain’s foremost scholar of criminal law’, Professor Glanville Williams was one of the greatest academic lawyers of the twentieth century. To mark the centenary of his birth in 2011, leading criminal law theorists and medical law ethicists from around the world were invited to contribute essays discussing the sanctity of life and criminal law while engaging with Williams’ many contributions to these fields. In re-examining his work, the contributors have produced a provocative set of original essays that make a significant contribution to the current debate in these areas.1. Glanville Llewelyn Williams, 1911-97: a biographical note Peter Glazebrook 2. Glanvilles inspiration George P. Fletcher 3. Preventive orders and the rule of law Andrew Ashworth 4. The specialness of the general part of the criminal law Michael S. Moore 5. Four distinctions that Glanville Williams did not make: the practical benefits of examining the interrelation among criminal law doctrines Paul H. Robinson 6. Reflections on Dudley and Stephens and killing the innocent: taking a wrong conceptual path Joshua Dressler 7. Intention revisited Antony Duff 8. A disintegrated theory of culpability Andrew Simester 9. Sir Michael Foster, Professor Williams and complicity in murder Sir Roger Toulson 10. Mental disorder and sexual consent: Williams and after John Stanton-Ife 11. Williams v. Kamisar on euthanasia: a classic debate revisited John Keown 12. The failure of the defence of necessity as a mechanism of legal change on assisted dying in the common law world Penney Lewis 13. The duty to preserve life and its limits in English criminal law Antje du Bois-Pedain 14. Professing criminal law A. T. H. Smith.