WHY DO WE NEED CRIMINAL LAW? AND CONSIDER WHETHER PERHAPS ENGLAND AND WALES HAVE TOO MUCH CRIMINAL LAW?

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In order to achieve a greater understanding of criminal law, it is necessary to explore the intellectual rationale behind universal truths, particularly the belief that society conditions human beings. By this principle, to create a just society, humans must be conditioned by the intervention of criminal law to act as ethical beings that do not cause harm, partake in moral wrongdoing or create public disorder.

No doubt in reading, you will uncover an understanding for the work of a criminal law barrister

 

A core justification for the existence of criminal law is freedom from harm. Harm may be physical for example subjecting vulnerable children to domestic violence, or it may be psychological, for example harassing an old lady. The principle of freedom from harm safeguards the human rights of the weakest in society. Human rights are a universal principle that is accepted by most societies. Loveless believes that it is “here the law performs a paternalistic role”[1]. Paternalism is the practice of authority to benefit the dependents. The dependents’ “consent or dissent is not a relevant consideration for the initiator”[2] Just like a concerned father may monitor the nature of the music that his son listens to, criminal law is a process for monitoring the actions of citizens to protect the vulnerable from harm.

 

Another fundamental reason for criminal law is to act as a disincentive for moral wrongdoing, in order to preserve social order as well as provide a framework for justice and punishment. Popular jurist Lord Devlin challenged liberal values at the time of the Wolfenden committee by arguing that the role of the law was to “rightly enforce moral principles and nothing else”[3], therefore taking away the incentive to commit immoral acts. Today, Devlin’s doctrine concerns itself explicitly with vice[4]. Vice or “Moralism” is upheld by the law internationally. For centuries in previous societies, there has been a broad consensus that acts of immorality would create chaos within society; this is proven by their classification of vice in the same category as murder[5]. A philosophical justification for disincentivising moral wrongdoing through the existence of criminal law is that it provides guidelines to live by within society, as Plato said, “it is vital for a society to exercise strict control”[6]. Transgressing against such guidelines or “control” would disrupt societal synchronisation.

 

Another central motivation for the existence of criminal law is to preserve public order. Devlin’s ideas give rise to the question “Is the role of the government to enforce public morality or public order?” The answer to this is simple. The role of any government is to construct a just society[7]. For this to happen, society cannot be in a position of social disarray, therefore government must work to “maintain a public order”[8] which would by definition preserve public morality. Public disorder, for example terrorism or raves, which threaten the safety of citizens, are disruptive to social stability and criminal law works to terminate these by way of punishment. Self-styled feminist Carol Smart offers the perspective that the average Joe lacks in-depth knowledge concerning gender equality and that the role of criminal law in way of public order in-fact acts to “demystify”[9] the correct rather than acceptable way to behave in a male-dominated society, which would result in long-term social harmony between the sexes.

 

Although in the long-term, controlling the actions of the public is beneficial. Members of society may feel that their freedom is greatly and unnecessarily sacrificed, just as the son may feel that there is no need for his father to monitor his music consumption.

 

One reason for there being too much criminal law in the UK is over-criminalisation. This is where crimes are created to deal with a problem with inadequate justification. The criminalisation of squatting in 2012 fuelled criticisms of the way that the UK government dealt with the domestic third world. UK’s largest homeless charity “Crisis” was horrified with the outcome and feared further downfalls, as this wasn’t the only setback. Government had also skimmed off £5m from the funding target for 2012[10] and the Alex Haigh case[11] furthered disillusionment. The occurrence of such events highlighted unnecessary punishment of simple misdemeanors, where criminal law was not being used as a last resort.

 

Similarly, Regulatory law, and it’s criminalisation is another example of too much criminal law in the UK. Some offences could easily be addressed with civil law. Public services including the police, NHS and social services argue that legislation on minor regulatory issues has led to bureaucracy and unnecessarily extensive paperwork for departments that should be working on tackling harm on the front-line. National scandals similar to the Oldham child abuse scandal 2012 as well as the NHS poor records 2012 scandal are often cited by left-wing academics such as Judy Yun who goes on to explain that the practice of “statutory form at the federal level”[12] is like steering through a maze of regulatory offence hurdles. Regulatory criminalisation therefore devalues the harm principle[13].

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On the other hand, there is an increasing pressure to criminalise acts by politicians, pressure groups, journalists and the general public. This is a result of the rise in Social media, Internet transparency, and cyber & Internet crime. Despite being accused of politicisation or “political point-scoring”, the need for legislation to monitor e-crimes is real. Criminologist Prof. Yvonne Jewkes Believes that “for the past 12 years”[14] research has been conducted into Internet crime, yet legislation is sparse, so much so that there is a stigma “experienced by victims”[15] when reporting such crimes to the police. Therefore criminal law is necessary to protect the vulnerable from new methods of crime that will continue to evolve.

In conclusion, it may surmise that the reasoning for the existence of criminal law is an amalgam constructed of three fundamental elements: Freedom from harm, to act as a disincentive for moral wrongdoing and to preserve public order. When considering the volume of criminal law in relation to England and Wales, Over-criminalisation and regulatory-criminalisation prove that, despite the exception of the ever-evolving cyber-crime, criminal law should be limited for the betterment of society. For expert advice and representation, one should seek the services of a barrister.

 

[1] Janet Loveless, Criminal Law Text, Cases, and Materials Fourth Edition (Oxford, 2014), p.6

[2] H. Tristram Engelhardt, The Journal of Medicine & Philosophy (Oxford, 2014), p.1

[3] Janet Loveless, Criminal Law Text, Cases, and Materials Fourth Edition (Oxford, 2014), p.6

[4] Ronald Dworkin, Lord Devlin and The Enforcement of Morals, The Yale Law Journal (USA, 1966), P.986

[5] Lysander Spooner, Vices Are Not Crimes: A Vindication of Moral Liberty (UK, 2006)

[6] Nicholas D. Smith, The Journal of Ethics Vol.3 (USA, 1999), P.31

[7] M. Aoki, HK Kim, M Okuno-Fujiwara, The Role of Government in East Asian Economic Development: Comparative Institutional Analysis (Oxford, 1997), p.379

[8] Myres Smith MacDougal, Florentino Feliciano, The International Law of War: Transnational Coercion and World Public Order (New Haven, 1994), p.xxiv

[9] Carol Smart, Law, Crime and Sexuality: Essays in Feminism (London, 1995), p.2

[10] David Brindle http://www.theguardian.com/politics/2012/apr/09/homelessness-charities-missing-money-boris-johnson Viewed on 06/10/14

[11] Janet Loveless, Criminal Law Text, Cases, and Materials Fourth Edition (Oxford, 2014), p.3

[12] Judy Yun, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases (Columbia, 1983) p.1748

[13] Professor Sheila A McLean, First Do No Harm: Law, Ethics and Healthcare (Hampshire, 2006)

[14] Yvonne Jewkes, Majid Yar, Handbook of Internet Crime (Oxon, 2011), p.xiii

[15] Yvonne Jewkes, Majid Yar, Handbook of Internet Crime (Oxon, 2011), p.356

Critically evaluate the ability of tribunals to deliver effective administrative justice.

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“Since power is exercised neither through parliamentary speeches nor monarchical enunciations but through the routines of administration”[1], government has become increasingly bureaucratic. As such, it becomes more important for administrative agencies to exercise good governance[2]. In order to ensure that the state does not become tyrannical, there are a number of restrictions placed on its power. A powerful check on the government’s power is a tribunal. A tribunal is a statutory body that can hear and determine appeals by individuals against initial decisions by government agencies – essentially; a tribunal is an accountability mechanism.

If you need representation for an employment tribunal for an unfair dismissal hearing, you need to contact a barrister at the first available opportunity.

Administrative justice is concerned with the way individuals are treated by government agencies in their dealing with the state and also requires good administration by the government[3]. A tribunal is an avenue for redress or alternative dispute resolution (ADR) that allows individuals to get explanations for certain decisions made. There are a lot of tribunals that hear issues on particular areas of life with the Immigration tribunal being the busiest in 2014 in terms of case disposal[4]. As the tribunal’s decisions often have life-changing implications, it is only fair that they are expected to deliver administrative justice. Reflecting this widely accepted responsibility is the statistics of the cases that tribunals hear in comparison to the traditional court system “annually, judicial review applications are numbered in the thousands, but tribunal appeals in the hundreds of thousand,”[5] signifying the correlation between ADR and the exponential growth of tribunals. In spite of this, it is not always the case that these expectations come into fruition.

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Though there are some very clear advantages of having tribunals[6], their ability to deliver effective administrative justice is questionable for many reasons. This essay will evaluate: the nature of tribunals; the reforms made to the tribunal system; the approach adopted by the tribunals; and the outcome of decisions made by the tribunals to ultimately show that the tribunal system needs to do more to ensure that effective administrative justice is achieved.

 

Nature

Historically, courts were thought to be ‘inaccessible, formal, expensive, slow and ideologically unsympathetic to and ignorant of public welfare and regulatory programmes’[7] which was one of the main reasons for the establishment of the tribunal system. Paul Craig[8] supposes that there are three arguments for the creation of tribunals all of which are a turn around from the views associated with the courts. He states that the preference of tribunals as opposed to courts is because of the fact that they have the benefits of speed, affordability, informality and expertise. To that end, one could argue that tribunals effectively deliver administrative justice due to the wide availability for citizens to seek redress. As noted by the courts in Saleem[9]:

 

In this day and age a right of access to a Tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the courts.

 

It is therefore possible to conclude that, tribunals, unsurprisingly, are central to the administrative justice system[10] as they provide for the opportunity for citizens to take part in the democratic process.

 

Being branch of government solely responsible for the interpretation and application of law to individual cases, the judiciary is often overwhelmed with a high number of cases. The implication of their role is that decisions need to be dealt in a way that ensures quality, as it is their decision that sets precedent. Consequently, this can mean that the judicial branch of government is seen as slow.

 

To alleviate these problems, tribunals were also established to move many disputes away from the courts that might be overwhelmed with other, more important cases[11]. However, it has been said that this is a breach of the Rule of Law. Cited by Le Sueur et al[12], Lord Hewatt believes that tribunals were ‘at best, a necessary evil established to save courts from being overwhelmed and, at worst, a subversion of the rule of law’. He also purported that ‘the use of administrative tribunals undermined the rule of law because these bodies were established and largely controlled, by the government departments whom individuals were in dispute’[13]. Leyland and Anthony also share this opinion from the angle that ‘the determination of outcomes outside the normal courts [threaten] the fundamental concept of the rule of law.’[14] This clearly shows that the tribunal’s ability to deliver effective administrative justice is considerably weakened. At this point in time, tribunals seemed increasingly under the control of the government, which rendered the scrutiny function of tribunals as ineffective. It might be argued that the Tribunals, Courts and Enforcement Act (TCEA) 2007 has significantly enhanced the independence of the Tribunals, but even with this in place, the tribunal system still has inherent problems.

 

Aforementioned is a key principle espoused by the Franks report[15], namely that the Tribunals should be impartial. In addition to this, the Frank’s report also recommended that the Tribunals be fair and open[16]. Together these principles comprise the essence of good governance. For a citizen to see its current government as legitimate, they must be advancing policies for the greater good and be seen as truly ‘’for the people”. As such one can view tribunals as an ‘important instrument in policy implementation’ as noted by Leyland and Anthony[17] who highlight examples of legislation that led to the establishment of tribunals for the purpose of achieving its aim such as the School Standards and Framework Act 1998. Despite policy advancement being an obvious benefit, the consequence is that the tribunal system might lose its ability to impartially and, more importantly, fairly, deliver effective administrative justice.

 

The use of a tribunal as the main instrument of policy implementation could be seen as a double-edged sword[18]. The current coalition government has a stricter stance on immigration and as a result, the 12% increase of disposed immigration cases from period of April to June from 2013 to 2014 is a clear demonstration of this policy stance. Comparing the amount of cases tried in the employment tribunal in the same time period, there was a 50% decrease[19]. This is particularly strange given that the current economic climate is one of very few jobs. If the increases and decreases are due to policy stances, it is more difficult to ensure that tribunals are impartial and fair. The implication of a tribunal decision is often life changing especially in the case of immigration appeals. So to make this decision with consideration of party policies[20] over the appellant’s circumstances is, in some ways, unethical, as the result of the decision might be to break up a family. In this way it is hardly possible to say that tribunals are able to deliver effective administrative justice.

 

Reforms

Because tribunals have bee developed on an ad-hoc basis, the tribunal system has developed haphazardly[21]. By way of making the tribunal system more coherent and accessible the Legatt Report[22] proposed a ‘single system with structural coherence comprising first tier and an appellate second tier of tribunals’[23]. Further to that, the Legatt Report made recommendations on the operation of this new unified tribunal system ranging from its independence to its user-friendly nature[24]. The White Paper “Transforming Public Services” also turned the Council on Tribunals into an Administrative Justice and Tribunals Council. All of these recommendations were implemented by the TCEA 2007. The effect of making the tribunal system unified has been to reduce the amount of ministerial discretion to establish tribunals when they wanted. To that end tribunals have been de-politicised in that they cannot be used as a political weapon. For this reason, one could argue that the TCEA has enabled the more effective deliverance of administrative justice.

 

However, some people have suggested that the tribunal system is not actually anymore accessible than it was before the TCEA purely because of the fact that the system is complicated[25]. This can be inferred from the amount of appeals made to the tribunals ‘the total volume of injustice is likely to be much greater among those who accept initial decisions than among those who complain or appeal.’[26] There are a lot of reasons for the low appeal rate such as the ignorance of one’s appeal rights or the ‘perceived lack of independence’[27], either way, they are both factors that hinder the ability of a tribunal to deliver effective administrative justice. In 2013, the Administrative Justice and Tribunals Council was abolished thus the function of being able to keep track of listed tribunals under review is now within the remit of the Ministry of Justice – part of the executive. This does not improve the independence or impartiality of the tribunals and as noted by Craig it’s abolition ‘[has] very negative implications both symbolically and pragmatically for administrative justice’[28]. It is therefore not an exaggeration that when it comes to the deliverance of administrative justice, the TCEA 2007 has hardly done anything to improve this.

 

Approach

The approach adopted by the UK Tribunal system is the enabling or active approach. This approach enables the head of the tribunal to increase the confidence of the parties to participate in the process and compensate for an appellants potential lack of skills/knowledge[29]. This has made the need for representation less of a necessity and more of an option[30], which has in turn enhanced the ability of tribunals to effectively deliver administrative justice. In support of this is the fact that government websites are very informative meaning that those with access to the Internet are able to inform themselves of points of contestation. Alternatively there are legal advice centres across the country, which can give very sound advice at no cost though the quality of such advice might be questioned. Further to this, the enabling approach has given unrepresented claimants the chance to appeal against the “repeat-player”[31]. There is often a misconception that anything to do with appealing government decisions involves money, which prevents a lot of people from appealing decisions[32]. Legal aid was established precisely to tackle the issue of legal fees, which in some sense has enabled those who stereotypically could not access the courts to actually access them and gain justice. To an extent, it is clear the approach of the court has definitely increased the effective deliverance of administrative justice by broadening the scope of people who get involved with the system.

 

However, as noted by Thomas, the need for representation is dependent on the nature of the hearing, for example, an unrepresented appellant of an asylum appeal is likely to face a lower chance of success than in other tribunals[33]. This might be due to language barriers or the complexity of the law at hand[34], such a scenario is at odds with the principle of fairness espoused by the Franks Report. It might narrowly be argued that an unrepresented client might gain the sympathy of the head of the tribunal but this is would be rare as ‘tribunals must determine whether rules have been applied correctly, not determine whether justice – in terms of deservingness – has been done in the individual case’[35]. A major set back to effective deliverance of administrative justice are the recent cuts to legal aid. While it might be proffered that these cuts have not put the tribunals out of business, these cuts would have affected a specific demographic of people[36] and thus would have decreased the accessibility of the Tribunal system. In an ideal world, the active approach would be the main evidence of an effective delivery of administrative justice. In reality the inherent problems of the enabling approach increases the likelihood of the tribunal system to, inadvertently, strengthen social divides. However, given the fact that the majority in government today is held by the Conservative party, it might be argued that such a furtherance of social divide was intended due to its opposition to state intervention.

 

Results

So far, the discussion has been focused on the deliverance of administrative justice for the appellants or the citizens, but administrative justice is not exclusively for the ‘victim’. In fact, there has been an increase in backlash against, in particular, employment tribunals by those defending themselves in court who believe that these appellants are ‘opportunists and chancers and vexatious spongers’ who have the advantage of the entire system being ‘rigged in their favour’[37]. Moorhead however states that ‘more money is spent on defending employment claims than is spent bringing them’[38]. Interestingly, John Cridland suggests that ‘the current system of employment tribunals is “broken” and that “everyone other than lawyers lose.”’[39] In this way, the ability of the tribunal system to deliver effective administrative justice is unsatisfactory and needs to be reconsidered in order to ensure that tribunals create fair decisions for all parties involved.

 

It is clear that there has been a very respectable attempt by the tribunal system to ensure the effective delivery of administrative justice but such an attempt has proven inadequate and has demonstrated the need for government to figure out more innovative ways that will ensure that tribunals can effectively deliver administrative justice otherwise its establishment will be in vain.

 

 

 

 

 

 

 

Bibliography

 

Adler M, ‘Tribunal Reform; Proportional Dispute Resolution and the Pursuit of Administrative Justice’ (2006) 69 MLR 958 at 980-2

 

Baldwin J, Judging Social Security, (Oxford, Clarendon Press, 1992)

 

Cane P, Administrative Law (5th edn, OUP 2011)

 

Department for Constitutional Affairs, Transforming public Services: Complaints, Redress and Tribunals

 

Elliot M and Thomas R, Public Law (OUP 2014)

 

Langley, W ‘Employment tribunals are legalised extortion’ The Telegraph (London, 7 August 2011) < http://www.telegraph.co.uk/news/uknews/law-and-order/8686463/Employment-tribunals-are-legalised-extortion.html > accessed 10 March 15

 

Law Observer, ‘Tribunals’ <http://www.lawobserver.co.uk/tribunals_25.html > accessed 11 March 2015

 

Le Sueur A, Sunkin M, Murkens JEK, Public Law: Text, Cases, And Materials (OUP 2013)

 

Leggatt A ‘Tribunals for Users – One System, One Service’ (2001) < http://www.tribunals-review.org.uk> accessed 11 March 2015

 

Leyland P and Anthony G, Textbook On Administrative Law (7th edn, OUP 2012)

 

Ministry of Justice, Tribunals Statistics Quarterly: April to June (11th September 2014)

 

Moorhead R, ‘Employment Tribnals: Weighted Against Employers?’ (Lawyer Watch, 5 January 2011) < https://lawyerwatch.wordpress.com/2011/01/05/employment-tribunals-weighted-against-employers/ > accessed 11 March 2015

 

Moss R, ‘Miscarriage of fears over legal aid cut plans’ (BBC News England, 31 May 2013) <http://www.bbc.co.uk/news/uk-england-22729956 >accessed 11 March 2015

 

Prosser T, ‘Poverty, Ideology And Legality; Supplementary Benefit Appeal Tribunals and Their Predecessors’ (1977) 4 BJLS 39.

 

R v Secretary of State for the Home Department ex parte Saleem [2000] Imm AR 529, 544, per Hale LJ

 

Wagner A, ‘”Legal Parasites feeding on small businesses” or protectors of rights?’ (UK Human Rights Blog 5 January 2011) < http://ukhumanrightsblog.com/2011/01/05/legal-parasites-feeding-on-small-businesses-or-protectors-of-rights/ > accessed 11 March 2015

 

Weber M , Economy and Society: An Outline of Interpretive Sociology, vol 3 (Guenther Roth and Claus Wittich, New York: Bedminister Press 1968)

[1] Max Weber, Economy and Society: An Outline of Interpretive Sociology, vol 3 (Guenther Roth and Claus Wittich, New York: Bedminister Press 1968) 1393

[2] Mark Elliot and Robert Thomas, Public Law (OUP 2014) 347

[3]Department for Constitutional Affairs, Transforming public Services: Complaints, Redress and Tribunals (Cm 6243, 2003) 3

[4] Ministry of Justice, Tribunals Statistics Quarterly: April to June (11th September 2014) 12-13

[5] Peter Cane, Administrative Law (5th edn, OUP 2011) 319

[6] Cane (n 5) 319

[7] ibid 319.

[8] Paul Craig, Administrative Law (Sweet & Maxwell 2012) 232.

[9] R v Secretary of State for the Home Department ex parte Saleem [2000] Imm AR 529, 544, per Hale LJ (Saleem)

[10] Elliot and Thomas (n 2) 616.

[11] Craig (n 8) 232. and; Peter Leyland and Gordon Anthony, Textbook On Administrative Law (7th edn, OUP 2012) 156.

[12] Andrew Le Sueur, Maurice Sunkin, Jo Eric Khushal Murkens, Public Law: Text, Cases, And Materials (OUP 2013) 646.

[13] Le Sueur, Sunkin, Murkens (n 12) 646.

[14] Leyland and Anthony (n 11) 156.

[15] University of Oxford, Report of Commission of Inquiry (OUP 1966) vol 1 (Franks Report)

[16] Le Sueur, Sunkin, Murkens (n 12) 646-647.

[17] Leyland and Anthony (n 11) 157.

[18] Tony Prosser, ‘Poverty, Ideology And Legality; Supplementary Benefit Appeal Tribunals and Their Predecessors’ (1977) 4 BJLS 39. 44.

[19] Ministry of Justice (n 4) 12-13.

[20] Robert Thomas, “From “Adversarial v Inquisitorial” to “Active, Enabling, and Investigative”: Developments in the UK Administrative Tribunals’ in Laverne Jacobs and Sasha Bagley (eds), The Nature Of Inquisitorial Processes In Adminstrative Regimes: Global Perspectives (Ashgate Publishing Limited no date) 59.

[21] Elliot and Thomas (n 2) 627.

[22] Andrew Leggatt, ‘Tribunals for Users – One System, One Service’ (2001) < http://www.tribunals-review.org.uk> accessed 11 March 2015

[23] Leyland and Anthony (n 11) 162.

[24] Department of Constitutional Affairs (n 3) 20.

[25] Law Observer, ‘Tribunals’ <http://www.lawobserver.co.uk/tribunals_25.html > accessed 11 March 2015

[26] Elliot and Thomas (n 2) 635.

[27] ibid 635.

[28] Craig (n 8) 257

[29] Elliot and Thomas (n 2) 637.

[30] Michael Adler, ‘Tribunal Reform; Proportional Dispute Resolution and the Pursuit of Administrative Justice’ (2006) 69 MLR 958 at 980-2

[31] Thomas (n 20) 52.

[32] Elliot and Thomas (n 2) 635.

[33] Thomas (n 20) 59.

[34] Elliot and Thomas (n 2) 635.

[35] John Baldwin, Judging Social Security, (Oxford, Clarendon Press, 1992)

[36] Richard Moss, ‘Miscarriage of fears over legal aid cut plans’ (BBC News England, 31 May 2013) <http://www.bbc.co.uk/news/uk-england-22729956 >accessed 11 March 2015

[37]William Langley, ‘Employment tribunals are legalised extortion’ The Telegraph (London, 7 August 2011) < http://www.telegraph.co.uk/news/uknews/law-and-order/8686463/Employment-tribunals-are-legalised-extortion.html > accessed 10 March 15

[38] Richard Moorhead, ‘Employment Tribnals: Weighted Against Employers?’ (Lawyer Watch, 5 January 2011) < https://lawyerwatch.wordpress.com/2011/01/05/employment-tribunals-weighted-against-employers/ > accessed 11 March 2015

[39] Adam Wagner, ‘”Legal Parasites feeding on small businesses” or protectors of rights?’ (UK Human Rights Blog 5 January 2011) < http://ukhumanrightsblog.com/2011/01/05/legal-parasites-feeding-on-small-businesses-or-protectors-of-rights/ > accessed 11 March 2015