Positive Obligations in the Criminal Law

Author: Andrew Ashworth
Publisher: Oxford, UK; Portland, OR: Hart Publishing, 2013. 232p.
Reviewer: William Wilson | March 2014

This is a timely and welcome collection of essays, both old and new, from the pen of someone who, I hesitate to remind him, has been, for not far short of half a century, one of the common law’s most distinguished thinkers in the field of criminal law. I use the word ‘thinker’ advisedly because, if any one thing separates the writings of Andrew Ashworth from other modern masters of criminal law and theory, it is the fact that Ashworth’s prime emphasis has been upon thinking about the subject rather than simply using the subject as a resource in the exploration, evaluation and testing of theories of criminal law. Given the crucial and potentially injurious social functions criminal law offers to discharge, it is of signal importance for an account to be given which discloses its underlying premises, and subjects these and the way they are implemented to critical evaluation. Adopting the terminology of Nicola Lacey, it is this kind of ‘middle level’ account which Ashworth has always adopted. The primary aim is to make sense of the social practice of criminal law and to identify how far it measures up to the goals it sets itself.

Typical of this normative emphasis is the coverage of strict liability and possession offences in chapters 4 and 6 of Ashworth’s new book, Positive Obligations in the Criminal Law. Both these chapters seek to identify the proper limits within which individuals are obligated to advance general social goods, including safeguarding the interests and welfare of others. No better summary of the human, essentially liberal, purpose of Ashworth’s general approach can be offered than his own concluding words in chapter 4:

My reasoning has been essentially normative, rather than descriptive or historical. At its core is the notion of fairness, and its connection with censure-based and rule of law values. I have argued that it is unfair, in a political system to convict people of serious crimes without proof of fault as to all the material elements of the offence. This goes against basic notions of personal autonomy; and it is even more destructive of autonomy to deprive a person of liberty, by means of a sentence of imprisonment, with such proof of fault.

Chapter 2, which contains a new essay, is representative of this approach, dealing with liability for omissions. This chapter provides a valuable rehearsal, elaboration, and excursus of the position first adopted in his classic 1989 article, ‘The Scope of Criminal Liability for Omissions’, and which prompted the debate with Glanville Williams which centred on the propriety of conflating for criminal purposes what are, in effect, separate moral wrongs, namely the wrong of inflicting harm and the wrong of not preventing it. What is immediately apparent here, which was perhaps less so in the original article, is the rather more direct rejection of the idea that acts and omissions are equivalent bases for criminal liability. In particular, while there are clear and clamant arguments for criminalising omissions where there are special reasons why this omitter, rather than someone else, for example, should have intervened, there is no attempt to suggest that such a special reason, of itself, should render an omitter accountable for the consequences. Indeed, no firm conclusion is reached on this matter beyond the general point that accountability would require equivalence of culpability and, although not stated explicitly, causation.

What makes this collection of essays particularly significant, however, is the inclusion of the second set of essays on the positive obligations of the state. Ashworth sees such obligations as mirror images of the positive obligations placed on individuals. If individuals are obligated as citizens to ensure the necessary steps are taken to measure up to the standards expected of us as parents, doctors, contractors, employees, carers and so on, so the state has the obligation to ensure that it seeks to limit coercive interventions to cases where those obligations are ethically validated both formally and substantively. Formal ethics require laws which adhere to the principle of legality and minimal criminalisation. Substantive ethics requires observance of the principle that only the blameworthy should attract stigmatic punishment, and then, only proportionate to the degree of blame. Moreover, the same principles underpin both observance and implementation of the rules. Thus, speaking in Chapter 3 on the topic of ignorance of the criminal law, Ashworth argues? that complementarity results in obligations not only on the individual to make reasonable efforts to know the criminal law but also a concomitant ‘obligation on the state to ensure that criminal laws are duly publicised and communicated’ to all those who are subject to them. Other essays exploring similar themes of the obligations underpinning the state’s authority to punish include Chapter 4 on Strict Liability; Chapter 5 on a list of crimes denoted by Ashworth rather controversially as examples of constructive liability, namely those crimes whose actus reus elements do not have a matching fault element; Chapter 6 on ‘risk-based’ possession offences; Chapter 7 on child defendants; and Chapter 8 on the State’s obligations under the European Convention on Human Rights to ensure that the criminal law serves the state’s duty to ensure that citizens are protected against those, including the state itself, whose actions or omissions might compromise such rights.

One possible lacuna in the collection is the absence of a sustained attempt to draw out all the theoretical tensions which necessarily obtain when considering the enforceability of the respective obligations of state and individual. It goes without saying, for example, that the authority of the state is predicated upon the fairness both substantive and formal of its coercive mechanisms. The state has no business exploiting expressive retributive punishment of those who are not at fault, even if it may have commensurate obligations to incentivise compliance, through non expressive penalties, on the part of those same people if this is for the common good. Questions of proportionality and balance inevitably must underpin this. On the other hand, the obligation on the part of citizens not to deliberately hurt others does not, as a matter of principle, disentitle the state from exacting censure according to the consequences which ensue rather than the accompanying mental attitude. The state’s job is to hold people to account for what they have done, which necessarily must have regard to the consequences of their actions. This reflects its broader obligation to citizens at large to take charge of the wrong on their behalf. Censuring and punishing someone for murder, when he intended only grievous bodily harm, or for maliciously inflicting grievous bodily harm, when he intended only minor injury, does not, in meeting this obligation, necessarily require perfect symmetry of wrongdoing and fault to do justice. Justice is a two way thing, as Ashworth himself, after all, is so anxious to remind us. Arguments concerning ‘changes of normative position’ must be seen in this light. It is not that the defendant’s change in normative position makes punishment for the consequence fair as a matter of ethical principle but whether it makes it fair, all things considered. All things considered, censure and punishment are not only about questions of fairness and desert vis-à-vis the defendant. They are also about fairness and desert vis-à-vis the affected community, which demands consideration to be given to the basic concern of holding the defendant to account on behalf of his/her community for the wrong done to it. Sometimes only ‘rough justice’ can do justice.

One further tension concerns how Ashworth’s approach to the criminalisation of omissions can be reconciled with the strictures demanded of the State concerning the principles of criminalisation. In ‘The Scope of Criminal Liability for Omissions’ Ashworth advances a political justification for criminalising omissions which “grows out of a communitarian social philosophy which stresses the necessary interrelationship between individual behaviour and collective goods”. The position adopted in articles such as ‘Is the Criminal Law a Lost Cause?’, by contrast, emphasises the piecemeal destruction of criminal law conceived as criminal justice. Like many others, he characterises the contemporary experience as one involving unprincipled escalation of coercion to advance social goods in opposition to its traditional liberal ideals such as the rule of law, fair labelling, equal treatment and proportionality, the harm principle, and subjective fault.

The tension arises out of what a truly communitarian perspective commits us to. In particular, the communitarian ethic does not acknowledge the centrality of individuated responsibility for action based upon the culpable causing of harm. Wrongs can be done without conceiving of human action and responsibility for consequences in these narrow terms. Communitarianism introduces a notion of legal personhood whereby the individual, by virtue of his membership in a community, is constituted as a social person rather than an isolated individual, who happens to have certain reciprocal duties not to harm others. By virtue of this social identity he is fixed with a richer responsibility towards the various communities of which he is a member, one in which the centrality of liberal ideals of consistency, certainty, subjective choice and harm in the classic liberal sense is inevitably compromised. Positive obligations to one’s community are not exhausted by our choosing not to harm or offend others in the Feinbergian sense. Rather, as Ashworth impliedly acknowledges, these may commit us to a far broader range of positive obligations including, perhaps, as he acknowledges, ’civic obligations’ to, for example, report crimes designed to protect people from harm’. Why stop there, however? Once it is acknowledged that, as members of communities, rather than simply chance visitors or inhabitants thereof, we owe reciprocal duties to respect the principles by which our community is constituted and maintained, it is difficult to argue, as a matter of principle, against many of the state initiatives which he deplores which, like civil prevention orders such as the ASBO, are advanced as measures designed to minimise the sense of powerlessness, vulnerability and loss of dominion which anti-social behaviour falling short of criminality excites. If the problem is simply one of due process, or its absence, this is one thing. Because then we can consider how such failures of due process can be remedied just as we have been able to in relation to strict liability which itself was once declared anathema. If, on the other hand, it is to do with the fact that the orders do not and cannot fit the agreed template for criminalisation then I, for one, would need to have it explained why the criminal template is universal and immutable when it was born in and of a particular historic and social conjunction; and why, in another historic and social conjunction, it should not remain sensitive to changes in community structure and the changing problems of order and security which have inevitably followed. If the criminal law is a lost cause one simple reason may be that it is past its sell by date as a joined-up mechanism of social control rather than that it has lost its moral compass. If so, and I concede this may be unnecessarily apocalyptic, what replaces it?

William Wilson, Professor of Law at Queen Mary, University of London