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Abstract
I first offer an account of serious crime that goes beyond victimizing crimes committed by individuals against other individuals. This approach extends the well-known framework offered by von Hirsch and Jareborg to include crimes undermining welfare-producing institutions. I then consider how the seriousness of crime justifies preventive measures, including the criminalization of acts preparatory to the commission of serious crime. I shall defend preventive measures, including highly intrusive ones, for the most serious crimes, such as terrorism in the form of mass killing, but I shall take issue with very expansive conceptions of serious crime that include what are intuitively much less serious offenses than terrorism or murder. In England and Wales, the Serious Crime Act (2007) lists relevant types of serious crime in its Schedule 1. This and other pieces of serious crime legislation in the UK are discussed critically.
Notes
[Disclosure Statement: No potential conflict of interest was reported by the author.]
[The work for this article was supported by the Economic and Social Research Council (UK) [grant number ES/K000098/1].]
1 See von Hirsch and Jareborg, “Gauging Criminal Harm,” 1–38. The authors say that their paper was prompted by the increasing invocation of proportionality in the 1980s. The paper continues to be highly influential. See the latest edition of Ashworth, Sentencing and Criminal Justice, chap. 4. Also heavily influenced by von Hirsch and Jareborg are Greenfield and Paoli, “Framework to Assess Harms.” A number of other approaches gauge seriousness of harm by length of sentence and victim or public perceptions of seriousness. These latter are of little use in justifying sentencing. For an overview and a variation on these approaches, see Sherman, Neyroud, and Neyroud, “Cambridge Crime Harm Index.”
2 Von Hirsch and Jareborg, “Gauging Criminal Harm,” 17–19. The general approach is inspired by Sen, Standard of Living.
3 Von Hirsch and Jareborg, “Gauging Criminal Harm,” 19–21.
4 I realize that the large-scale lethal attack is not the only variety of terrorism, and that terrorism legislation in England and Wales is often criticized for criminalizing precursor and preparatory acts, not to mention acts of praising past attacks. Some of these offenses will be discussed later. But for the purpose of discussing von Hirsch and Jareborg, a standardized type of offense is required, and I am stipulating that it is the large-scale lethal attack. The difficulty of defining terrorism is well known and perhaps insuperable. See e.g., Hodgson and Tadros, “Impossibility of Defining Terrorism.”
5 Von Hirsch and Jareborg, “Gauging Criminal Harm,” 33–4.
6 Hobbes, Leviathan, 231. “But by Safety here, is not meant a bare Preservation, but also all other Contentments of life, which every man by lawfull Industry, without danger, or hurt to the Common-wealth, shall acquire to himselfe.”
7 Ibid., 123.
8 Ibid., 163.
9 This evidence could take the form of reliable information from informants, convictions, social scientific investigations commissioned by the government, or independently carried out by, for example, university researchers.
10 Transparency International UK mentions the use by organized crime of social housing for prostitution by women it has trafficked. See Corruption in the UK, 10.
11 See Home Office, Illicit Drug Trade.
12 The argument for treating participation in a violent, illegal market as serious crime may also be an argument for policy that will remove the violence—for example, by creating a legal and regulated drug market. Discussion of this issue is outside the scope of the present article.
13 Serious Crime Act 2007. http://www.legislation.gov.uk/ukpga/2007/27
14 Counterfeiting of goods is not within the scope of Schedule 1 counterfeiting offense.
15 See Home Department, Memorandum to the Home Affairs Committee, 3. In the UK an estimated 38,000 people are involved in organized crime. See Transparency International, Corruption in the UK, 2.
16 This is not to say that the well-off are not damaged by having their property stolen. They are still victims of intellectually property offenses notwithstanding their wealth. If they have invested in the products pirated at some risk of losing their money, they might deserve, other things being equal, to reap the financial rewards, notwithstanding the fact that they do not need those rewards. A multibillionaire who loses a million through theft is in that sense also a victim of a serious financial crime. But if the loss of a million is the aggregate of minute losses from individual downloads by poor downloaders, there may be no one on whom a just punishment can be visited by a Serious Crimes Act.
17 An official of the UK National Crime Agency has recently suggested that downloading offenses lead to serious cybercrime offenses. See Drury, “Web Whizkids.”
18 In another intermediate case, Internet sites are hacked and information stolen. If the point of the theft is simply to bring to light a vulnerability, and the information is not used to victimize data subjects, maybe even punishment is out of order.
19 See Ashworth and Zedner, Preventive Justice, chap. 1, nn. 21, 22, 30–4.
20 See Lomell, “Punishing the Uncommitted Crime,” 83–100.
21 Ibid. See also Asp, “Preventionism and Criminalization.”
22 See Duff, “Perversions and Subversions,” 100.
23 Serious Crime Act (2007), Section 1 (b).
24 The cases of R v. Hancox (Dennis) [2010] EWCA Crim 102, [2010] 1 W.L.R. 1434 and R v. Carey (Andrew) and Taylor (Darren) [2012] EWCA Crim 1592 say that there has to be “a real and significant risk” and “more than just a bare possibility” that the defendant will commit further serious crimes in order for an SCPO to be necessary to protect the public. This means that people who are convicted of more minor offenses and have no previous convictions would not necessarily be subject to an order. In Carey, one of the applicants successfully appealed against an SCPO on the basis that the judge had held that the risk of his being involved in future serious crimes was very low, and although he had participated in organized drug dealing, he had not played an organizing role and was therefore unlikely to be an organizer in future. The orders imposed are apparently sweeping at times, and this is at least partly due to the breadth of the restrictions that the Act allows in Section 5. For example, in R v. Hall (Robert), Wynne (Emmet) and Knight (Ian David) [2014] EWCA Crim 2046, the defendants, who had conspired to rob a bank, were prohibited from being near bank premises at night for longer than 15 minutes while in charge of a vehicle, which in the end prevented their doing things like going to the cinema: they appealed and were allowed to make written submissions on the drafting of the restrictions. Again, SCPOs have on occasion been in danger of interfering with fundamental rights, as in R v. Mcintyre (Andrew James) [2012] EWCA Crim 3085, in which the defendant, a drug dealer, was prohibited from associating or communicating with his long-term partner of 10 years, who was a co-conspirator. This provision was modified, as it was held to interfere with the defendant's right to maintain private relationships. I am grateful to my daughter, Lucy Sorell, for researching relevant case law.
25 See Serious Crime Act (2007), Section 25.
26 Ashworth and Zedner, Preventive Justice, 18.
27 The next two paragraphs are drawn from my forthcoming “Online Grooming and Preventive Justice.”
28 The breadth of the definition has been a recurring topic of criticism from the Independent Reviewer of the legislation, David Anderson, and his predecessor, Lord Carlile. See e.g., Anderson, Terrorism Acts in 2012, chap. 4. For comprehensive discussion, see Walker, “Legal Definition of ‘Terrorism’.”