That conduct is harmful to other persons is a necessary but not sufficient basis in principle for prosecuting it through the criminal law. Discuss. Overview It will be argued that there is no blanket rule as to whether harm is necessary and sufficient for the criminalisation of conduct. Harm is not necessary where there are other more pressing reasons to criminalise behaviour. And harm alone may or may not be sufficient to criminalise conduct, depending on other relevant factors that need to be considered in the interest of proportionality. Three possible cases and they will be considered in turn below: 1. Where harm is not necessary;
Where harm is necessary but not sufficient; 3. Where harm is necessary and sufficient. Meaning of harm Feinberg defines harm as "those states of set-back interest that are the consequences of wrongful acts or omissions of others". 1 This will be adopted for the purpose of this essay. Question of balance To argue that harmful conduct should always be criminalised is not sensible because the type and degree of harm in question varies with each case. To criminalise conduct that is minimally harmful would be disproportionate and contrary to the de minimis principle – that law should not criminalise trifling wrongs.
The reason being that this would bring the criminal law into disrepute. Therefore, it is not the fact of harm that is crucial but the degree and seriousness of the harm in relation to other material factors. This is the essence of the "Standard Harm Analysis" laid down by von Hirsch. 3 He argues that whether or not to criminalise certain conduct is a essentially a question of balance between the seriousness and likelihood of the harm against its social value. Harm is not necessary to criminalise behaviour Harm is often but not always necessary for the criminalisation of behaviour.
Mill's harm principle requires that conduct be harmful to others before it is criminalised. 4 Mill's justification is that victimless crimes exist and citizens should not be punished where there are no individual victims. This view is narrow and unrealistic because one may commit a potentially grave offence without causing harm to any individuals. There is no shortage of examples – there are offences against the state such as tax evasion, disclosure of official secrets and acts of terrorism that threaten national security. And offences against corporations such as fraud and embezzlement.
It would not be counter-intuitive to hold that these acts may be more serious than one which results in minor harm to an individual. Therefore, their commission may be met with punitive measures. Also, acts that do not cause harm may also be criminalised on ground of social expediency. This is evident from a range of summary offences,5 and reiterates the point that harm is not a necessary ingredient of criminal behaviour. Where harm is insufficient to criminalise behaviour (i) Minimalism Harm will often be insufficient under the minimalist approach to the criminal law.
It requires that the criminal law "should only be used as a last resort or for the most reprehensible types of wrongdoings". 6 The criminal law should only be invoked where necessary because any use of coercion invades one's personal autonomy. 7 One of the purposes of the criminal law is to protect personal autonomy, correspondingly its use may only be justified to prevent an infringement of that autonomy. Also, a law criminalising certain conduct with the aim of reducing it may cause greater harm than the conduct itself.
For example, a ban on drugs and prostitution inevitably gives rise to black markets because such trades are lucrative. For these reasons, conduct that is harmful to others should only be criminalised when it interferes substantially with their personal autonomy. (ii) Moral culpability Moral culpability for harmful conduct in the form of ill-will should be an additional requirement for the criminalisation of harmful behaviour for two reasons. First, there are situations where a measure resulting in harm may be a necessary means to a greater good. This was the case in Re A (Children).
The court afforded doctors the defence of necessity to terminate the life of one of two conjoined twins to keep the other alive. Secondly, there are different types of harm. Lord Templeman in R v Brown9 distinguished between "violence which is incidental" and "violence which is inflicted for the indulgence of cruelty". If all conduct resulting in physical harm were to be criminalised, then regulated and long-established contact sports would be illegal. This is not a tenable position for the law to take. Lord Woolf in R v Barnes10 held in favour of this proposition.
He said that injury that was reasonably foreseeable in the course of sporting activity was acceptable because parties gave their consent by choosing to engage in those sports. But moral culpability should be distinguished from immoral behaviour. Lord Devlin argued for criminalisation of the latter because he viewed it was a threat to the common morality that ensured society's cohesion. 11 The majority decision in R v Brown came dangerously close to this line of argument when they held that it was not in the public interest to allow consensual adults to engage in sadomasochistic activities that caused them grievous bodily harm.
That view is not one shared by this writer. Conceptually, immorality is not a sound reason to criminalise conduct because there can be no certain and defensible definition of morality. Morality is often confused with distaste and disgust,12 and society does not possess a common moral core because of divergent religious beliefs. For this reason, the Wolfenden Committee on Homosexual Offences and Prostitution argued that there ought to remain "a realm of private morality which is… not the law's business". 13 Therefore, immorality does not justify criminalisation, and harmful conduct should not be criminalised on those grounds alone.