There is a noticeable and concerning trend in Britain to fill the statute book full of new criminal laws, that such a trend is inconsistent with modern liberal values, that this trend has had a deleterious influence on the delivery of criminal justice, and that such overcriminalization is actually adversely affecting some traditional concepts of justice. In endeavoring to answer the question why there is such an appetite for over-legislation in the field of criminal law I will suggest it is, in many cases, a short-sighted and ill-thought-out way of responding to transient public opinion on particular topics.
First Principles
I think the starting point for any discussion is to go back to first principles. We can probably agree on the purposes of criminal law, and nobody in the U.K. would disagree with the famous definition given in the 1950s by the great American academic Herbert Weschler: "The purpose of the penal law is to express a formal condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it."
Thus the criminal law, by having punishment in its armory, declares that social values, such as honesty or the need to refrain from violence towards one another, are in need of protection, and those who depart from those values deserve punishment. As punishment is administered by the state, criminal law is potentially immensely powerful, and historically, in the U.K. at least, the criminal law developed through the common law.
It seems to me, therefore, that we must have in mind the clear common law principles of criminal law when considering the need to legislate for more and more crimes and more and more punishments. The first principle is parsimony-- that is, the criminal law should not be used unless the need for a social value to be upheld, meriting punishment for those who breach it, is plain and obvious. The second principle is culpability. A person only offends against a criminal law if he has the requisite state of mind--usually intention to commit the offense or at the very least recklessness as to whether or not the offense is committed, or the offender is dishonest; honesty being a social value which is legitimate to protect. Harmful consequences ought not, in themselves, be a crime attracting punishment unless the wrongdoer is culpable and the degree of culpability, in terms of intention or recklessness, is proportionate to the harm which results. Many harmful consequences are, in law, civil wrongs, but the intervention of the state in creating the crime and imposing the punishment for harmful consequences ought to be limited.
Measured against those principles, what are the recent developments in the United Kingdom? The bare facts are astonishing. In the 10 years in which Tony Blair was Prime Minister in Britain a total of 3,023 new offenses were added to the statute book in primary or secondary legislation. In this period Parliament was in session for 1,528 days (a diligent researcher has informed me), which means that for every day Parliament was in session two new crimes were created, many of them tucked away in obscure and unnecessary regulations. Lawyers only need to look to their overloaded library shelves to observe what has been happening. We have had the Crime and Disorder and Data Protection Acts in 1998, the Immigration and Asylum and Football Offenses Acts in 1999, the Terrorism Act and the Political Parties, Elections and Referendum Act in 2000 all creating completely new offenses. You may say, "What on earth can a statute about elections have to do with criminal law?" Well, quite a lot, because 69 new criminal offenses were created in that one Act of Parliament alone. In the year 2001, 56 new offenses were created; in 2002, 75; and in 2003, under the Sexual Offenses Act alone, 61 sexual crimes were enacted by Pa
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