The main function of the criminal law can be understood as the protection of individual rights, to which collective, or welfare interests are added.3 Its scope can be determined by the
infringement of rights, its central aim being not only to protect individual rights, but also collectively, those of the public.4 Whilst private wrongs which concern only those individuals
directly involved can be resolved in private actions, public wrongs concern all members of the community, and the community is, therefore, collectively responsible for punishing them appropriately.5 Lamond suggests that crimes are public wrongs in the sense that they are wrongs
to the public, because they ‘generate fear or social volatility, or because they violate values
3 Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford University
Press, Oxford, 2016) 16-17.
4 Ibid.
which the community shares.’6 It is the public nature of a given instance of wrongdoing, then,
that identifies it as criminal.
The criminal law aims to frame and reinforce civic values by identifying prohibited actions and enforcing appropriate and proportionate sanctions. Civic values effectively provide a justification for the regulation of activities, as conduct considered to be criminally culpable in a civil society is fundamentally perceived to constitute elements that are harmful to society. 7
The public interest in the decision to make conduct into a crime ultimately implies the importance of collective social responsibility, in determining what conduct society might consider to be criminal, or non-criminal conduct. 8
Criminal law is well-suited to further the dual aims of protecting individual rights and public mores due to the distinctive feature of criminal punishment. Unlike civil law proceedings, where a successful trial results in defendants being held liable for the breach of a legal regulation, a criminal prosecution results in offenders being convicted of committing a crime - and being found guilty of the charges against them.9 Victims are vindicated by means of the
sentencing and punishment of offenders, which can include the loss of liberty through imprisonment. The decision to make conduct into a crime turns on whether there is a public interest in ensuring that conduct does not happen, and when it does, then there is the possibility of state punishment.10 While both the civil and criminal law regimes may stamp conduct as
‘wrong’ or ‘harmful,’ through the creation of torts and criminal laws, merely describing conduct as ‘tortious’ does not carry the same social stigma and condemnation as the language of the criminal law, which talks about ‘crimes’, ‘offences’ and ‘convictions.’11 As Lamond
observes, the socially expressive terms employed by the criminal law communicate to society that certain conduct is marked out to be especially reprehensible, so that ‘the machinery of the state needs to be mobilized against it.’12 Such expressive communication transmits a dimension
6 Ibid.
7 RA Duff, Lindsay Farmer, SE Marshall, Massimo Renzo and Victor Tadros, ‘Introduction: The Boundaries of
the Criminal Law’ in RA Duff, Lindsay Farmer, SE Marshall, Massimo Renzo and Victor Tadros (eds) The
Boundaries of the Criminal Law (Oxford University Press, Oxford, 2010) 8.
8 Ibid.
9 Lamond (n 5) 610. 10 Ibid.
11 Tony Honoré, ‘The Morality of Tort Law’ in David G Owen (ed) The Philosophical Foundations of Tort Law
(Clarendon Press, Oxford, 1995) 75.
of censure and social unacceptability about the conduct, which helps to explain both the social significance of liability, and the coercive use of criminal liability by the state, to deter the conduct.13 When a person is convicted of a criminal offence, he is condemned for what he has
done.
Because the criminal law is concerned with condemnation and punishment, however, the institution must necessarily provide constraints so that criminal convictions are only warranted if a high standard of proof has been met, and a range of other procedural protections are followed. Where criminal charges are brought against defendants, the conduct in question would need to satisfy the Crown Prosecutor’s evidential and public interest stage.14 These
measures are distinctive to the criminal law as they ensure that, ideally, people are protected from wrongful convictions and that defendants’ rights of participation in criminal trials is safeguarded.15
5.2.1 Theoretical Justifications for the Aims of the Criminal Law
There is no single, unified theory which provides justification for the aims of the criminal law. In general terms, a taxonomy of common theoretical justifications can be put forward as grounds for state intervention and for the existence of criminal punishment.16 Theoretical
justifications for punishment are typically classified as consequentialist or non- consequentialist, or a mixture of the two. Consequentialist theories focus on the concept of harm, and harm reduction or prevention, and hold that the rightness or wrongness of any action or practice depends solely on its overall consequences. A common feature of consequentialist accounts, therefore, is that punishment is justified if it is instrumental in achieving some independently identifiable good, such as crime prevention, the promotion of social welfare, or, in classical utilitarian terms, the happiness of the greatest number of people.17 Notably,
13 Ibid.
14 CPS The Code for Crown Prosecutors at 4.1-4.12 < https://www.cps.gov.uk/publication/full-code-test>
accessed 15 January 2019.
15 Ibid.
16 See Ashworth (n 2) 78.
17 RA Duff, and David Garland, ‘Introduction: Thinking about Punishment,’ in Antony Duff and David Garland
consequentialist theories are capable of vindicating intuitively objectionable punishments, if making an example of innocent people, or ‘scapegoating,’ can justify their instrumental aims.18
Non-consequentialist theories, in contrast, subscribe to the idea of legal moralism, holding that the law should track our individual moral obligations. Non-consequentialist accounts hold that punishment can be justified as an intrinsically appropriate response to crime.19 This can be
because crimes are wrongdoings which deserve censure, or because crime involves taking an unfair advantage over the law-abiding, an advantage that punishment removes.20
Consequentialist theories can be thought of as forward-looking, as they justify punishment as a means of achieving certain beneficial ends. Non-consequentialist theories, by contrast, are backward-looking, justifying punishment in terms of its relation to a past offence.21 There are
also mixed theories that treat crime reduction and retributivist concerns as irreducibly important and so worthy of inclusion in a single justificatory framework.22 The most prominent
pluralistic theories are those of John Rawls, HLA Hart and Andrew von Hirsch. Rawls believes that punishment should be concerned with reducing the frequency of certain kinds of acts, so is instrumental and forward-looking in its approach, but that when determining the guilt of those accused of crimes, he asserts that this should be backward-looking, as punishment should be justified in relation to the past offence.23 HLA Hart’s mixed theory combines elements of
consequentialism, in that the general justifying aim of punishment should be understood in terms of crime prevention, but is also non-consequentialist, in that the governing principle, when deciding on punishment should be desert, to ensure that only the guilty are punished, and then, only proportionately.24 Andrew von Hirsch’s mixed theory posits that punishment can
justified primarily in retributivist terms, as a means of conveying appropriate censure, but that hard treatment should be used to convey that censure for consequentialist reasons, ‘to add a deterrent force to what would otherwise be a moral appeal, and thus to increase the crime- preventive efficacy of the law.’25
18 Ibid, 7. 19 Ibid, 4. 20 Ibid. 21 Ibid, 8.
22 Richard L Lippke, ‘Mixed Theories of Punishment and Mixed Offenders: Some Unresolved Tensions,’ (2006)
44(2) The Southern Journal of Philosophy 273, 274.
23 John Rawls, ‘Two Concepts of Rules,’ (1955) 64 Philosophical Review 3-32.
24 HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (2nd edn Oxford University Press,
Oxford, 2008).
25 Duff and Garland (n 17) 15; Andrew von Hirsch, Censure and Sanctions (Oxford University Press, Oxford,
For simplicity, however, this chapter will primarily focus on monistic theories of punishment, which provide one overarching justification for punishment. It will bear in mind, however, that these theories could, in principle, be combined. Criminal law theory is dominated by two theories which subscribe to these two opposing justifications for the aims of the criminal law, deterrence theory and retribution theory. Deterrence theory is underpinned by the rationale that preventing or reducing future crime is instrumental in improving overall societal welfare.26
It is consequentialist in the sense that it permits the punishment of offenders because of the positive benefits this brings to society. Retribution theory is framed around the belief that people are autonomous individuals, capable of choice, and if they make bad choices that society perceives are morally wrong, then they should be punished - or get their ‘just deserts.’27
Retributivism is non-consequentialist, as improving societal welfare is not its aim; however, from a legally moralistic standpoint, punishment of offenders does deliver a powerful message about the preservation of society’s standards. The following discussion will focus on deterrence theory and retributive justice as theoretical justifications for the aims of the criminal law. An overview of each theory will be presented, before being explored further and critically evaluated, through specific application to revenge porn. This will establish to what extent revenge porn can be sufficiently responded to in the criminal law, on the ground of each theory.