Should we care about the number of criminal offences?

By Adam Snow 

William Stuntz in his essay “Pathological Politics of the Criminal Law” Michigan Law Review (2001-2) 505 argues that criminal punishment drives criminal law.  That is the desire to punish transgressing behaviour drives the implementation of endless laws and regulations criminalising conduct.   However, Stuntz argues, contrary to expected wisdom this drive does not end up criminalising “the other” or “them” the criminal class, but instead criminalises “ordinary” “normal” members of society.

If there is one thing about criminal law that Stuntz wants us to recognise it is the law’s extraordinary breadth and depth: “that which they cover, they cover repeatedly” (Stuntz 2001: 518.)  The causes of this widening of criminal codes has its roots in politics, at both the surface and institutional level.  The surface, in that (apparently) voters want more punishment for ‘real criminals’ and legislators oblige by passing ever more criminal laws which make punishment easier to achieve.  At the deeper level the institutional design of criminal justice systems allows interested parties (we might include the police here) to present zero sum equations to politicians requiring ever more regulations to reduce the cost of, or likelihood of a trial.  Stuntz’s metaphor is of a box in which criminal law seeks to punish those in the middle, while those at the periphery generally adopt for trial since it is not clear or easy to prove their offence.  In such circumstances legislators, who for understandable reasons would rather punish than allow someone to “get away with it”, pass ever widening criminal laws to either increase the size of the box and place those previously at the periphery in the centre, or create a new box in which to put those peripheral cases.

So should we be worried about this trend? Undoubtedly so according to Stunz. But also according Nick Clegg and Nick Huhne who in 2006 lambasted Tony Blair’s Government for creating 3000 offences in its 9 years in office (see Blair's'frenzied law making' : a new offence for every day spent in office The Independent 16-8-2006 and Has Labour really created 3,000 new crimes? Channel 4 New, 19-09-2006) 

So concerned were the Liberal Democrats with this proliferation of criminal offences their 2010 manifesto contained a commitment to 

Halt the increase in unnecessary new offences with the creation of a ‘stop unit’ in the Cabinet Office. Every department in Whitehall would have to convince this unit of the need for a new offence p.94

So the question for this Blog is has this commitment translated into practice? Have there been fewer offences created? Is there a Stop Unit in the Cabinet?

Certainly the Coalition Agreement p.6 still contains a promise to create

A new mechanism to prevent the proliferation of unnecessary new criminal offences

As yet no mechanism has been forthcoming; there is no “Stop Unit” in the Cabinet Office although Nick Clegg remains committed to his pledge.

Perhaps the government are awaiting the draft Freedom Bill’s reception before entering into any arrangements for slowing the proliferation of offences.  Certainly the Bill does not contain any clauses establishing such an agency, and perhaps the costs of such an enterprise would not fit with the government’s determination to reduce the deficit and cut the number of Quangos.

So although there may be an expressed political will as yet it has not materialised into anything concrete.  Perhaps, as they say, actions speak louder than words, and the figures provide support for Clegg’s aims?

Well the picture there will provide little succour to Mr Clegg.  Since the coalition took office 11^th May 2010 there have been 460 offences created, the overwhelming majority by way of statutory instrument.  To be sure they cover a range of activities, a majority of which we would probably think need government action. However if we are using the same logic that Mr Clegg used in 2006, his and PM Cameron’s Government have created 460 offences in 491 days. (Although no questions in Parliament have been asked about these figures, they are taken from a reading of Statutelaw.gov.uk).  If this is to continue apace then if the coalition lasts 9 years (this would include 3 leap years, unlike the Labour figure which only included 2) the figure extrapolated would be 3074 offences created.   Almost exactly the same pace as the previous administration!

To return to Stuntz’s article, Mr Clegg may well be playing the surface politics game very well, looking to get rid of “pen pushers and busy bodies” as PM Cameron described local officials who, he suggests, have nothing better to do than trample the traditional British freedoms.  However the instrumental political landscape, the 'deeper politics' as Stunz calls it, seems very much harder to navigate.  It is not the thieves, the rapists, the murderers that are affected by these laws it is ‘us’, the normal non criminal class, the businessman, the farmer, the purchaser and seller.  And stopping this trend, as the coalition presumably desires, requires more than political rhetoric and minor institutional tinkering.


Adam Snow is a Ph.D candidate, in the Research Institute for Social Sciences. His project, entitled 'Pay-As-You-Go-Justice? On the spot fines and the future of the Magistracy' is jointly funded by Keele University and the Magistrates' Association. Adam is supervised by Dr Helen Wells, Professor Barry Godfrey and Dr Mary Corcoran.