Government on Steroids?

There is concern that the increasing over-legislation of the justice system by governments is adversely affecting traditional concepts of justice.

Though there is need to ensure an orderly society, it is feared that increased government legislation in the criminal law may limit liberty and individual freedom.

Speaking at the Heritage Foundation on November 5th, Judge Inigo Bing, Circuit Judge of Snaresbrook Crown Court in the United Kingdom (U.K.), said that “criminal law is by its nature authoritarian. And over-criminalization is more consistent with an authoritarian state than with a liberal democratic one.”

Referring to his home country (U.K.), Judge Inigo said this appetite for over-legislation of the criminal law is mainly in response to public opinion.

“It is in many respects an ill-thought-out way of responding to transient public opinion on particular topics,” he added.

He said that a lot of the rushed criminalization is political response to public opinion of specific harmful consequences of actions, such as death.

He argues however, that “harmful consequences cannot in themselves be a crime unless the wrong-doer is capable and the degree of capability in terms intention and recklessness is proportionate to the harm which it results.”

He adds that “many harmful consequences are in no way civil wrongs.” However, he says, “the intervention of the State, creating the crime and imposing the punishment to the harmful consequences ought to be limited.”

This is because “a person only offends against criminal law if he has a requisite state of mind, usually intentioned with the offense or to the very least recklessness as to whether the offences committed or the offender is dishonest, honesty being a social value which is legitimate to protect,” he adds.

Quoting Professor Anthony Giddens, the former Director of London School of Economics, Judge Bing said “solving urban problems does not mean increasing the powers of the police to sweep undesirables off the street. Almost to the contrary it means the police should work closely with the citizens to improve local community standards and civil behavior including education, persuasion and counseling, instead of arraignment.”

He added that over-legislation in Criminal Law creates “complexity, difficulty with interpretation and prescription which faces judicial desecration.”

This, he said, opens “ways in which too much criminal laws and legislation can be criticized.”

He cautioned that over-legislation in response to public opinion can water down cherished principles and should be resisted.

He said the danger of this reactionary legislation to the judicial system is that the “criminal process will be diminished, judicial desecration will be fated, over-complication will lengthen the trial and sentencing process and that politicians will resort to penal solutions to resolve complex problems.”

As a result, he said, it is a facile and superficial response to deep-seated social problems; it undermines the authority of the law, can be over-complex and susceptible to misinterpretation by judges and as a consequence “undermines public confidence in the administration of justice,” he added.

Emmanuel Opati is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.