Crimes and Security
| Author | Victor Tadros |
| Published date | 01 November 2008 |
| Date | 01 November 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00730.x |
Crimes and Security
Victor Tadros
n
This essay considers the rolethat the value of security might play in criminalisation.While endor-
sing security as a legitimate rationale for the creation of a criminal o¡ence, it examines some
existing o¡ences that are createdor structured in a particular wayfor security reasons.Th is is done
through a two-stage analysis. Stage one considers the consequences of adopting an o¡ence or
o¡ence de¢nition if it was interpreted ideally and complied with perfectly. Stage twocons iders
howwe can expect the o¡ences to operate in the real worldgiven imperfect compliance and non-
ideal interpretation.
INTRODUCTION
A concernwith security is drivingrapid reform in criminal justice.This is true not
least with respect to criminalisation. Many criminal o¡ences are created, or tai-
loredi n particular ways, forreasons of security.This article outlines the normative
considerations thatprovide toolscritically to scrutinise this securityagenda. Most
policy makers and academics working in this area assume that there is some bal-
ance to be struck between liberty and security.
1
Others suppose that there is some
core of civil liberties that cannot normally be erodedfor reasons of security.
2
The
focus of both groups has tended to be on the rights to be protected within the
criminal process and policing rather than onthe substantive criminal law. In this
article, I address the substantive law, asking: how should issues of liberty and
security impact upon the decisionwhether to criminalise something?
After clarifying some background matters, such as the relationship between
security and harm, I outline some general considerations that are relevant in a
theory of criminalisation. I locate the theory of criminalisation that I adopt in
the well-known tradition of multilevel theories of punishment before consider-
ing two general questions about criminalisation that arise generally in those the-
ories. One is the extent to which atheory of criminalisation can be considered in
isolation from other questions of justice, such as the distribution of wealth. The
n
School of Law, University of Warwick.An earlier paper from which this papergrew was delivered at
the political philosophy group, University of Warwick, at All Souls College Oxford and at the
University of the West of England. Thanks go to the participants at those seminars, and especial ly to
Ben Bowling, Matthew Clayton, Tony Cole, Antony Du¡, Lindsay Farmer, Doug Husak, Sandra
Marshall, Massimo Renzo,AndrewWilliams and two anonymous referees for the Modern Law Review
for advice and suggestions.
1 The idea of str iking a balance is admittedly less popular amongst academics than policy makers,
but for a recent defence in the context of terrorism, see E. Pos ner and A.Vermeule,Terror in the
Balance:Security, Liberty and the Courts (Oxford: OUP, 2007).
2 AndrewAshworthtakes broadly this approach in Human Rights,SeriousCrimea ndCriminal Procedure
(London: Sweet and Maxwell 2002). For a good account with a roughly ‘civil l iberties’ orie nted
focus, but which takes consequences seriously, see J.Waldron,‘Security and Liberty:The Image of
Balance’(2003) 11 Journalof Political Philosophy19 1.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71(6) 940^970
other is about the relationship between the rules considered in ideal terms (what
would the consequences be if everyone complied with them) and the rules con-
sidered in reality (what will theirconsequences in fact be).The remainder of the
article investigates some extant criminalo¡ences to subjectthem to analysis in the
light of the concern with security, and how that concern relates to other values
and rights that are central to cr iminal justice, consider ing them from both an ideal
and a real worldper spective. I should note that I focus on relatively few examples,
mainlyconcerning o¡ences that are suspiciously broad. A concern with security is
the most charitable explanation of the common tendency to de¢ne criminal
o¡ences broadly, as well as the explanation that governments are most likely to
provide for them. If they cannot be justi¢ed on these grounds I doubt they can
be justi¢ed at all. My focus is limited in order to enable a more sustained consid-
eration of each o¡ence. No doubt plenty of further examples could be found to
supplement those th at I choose.
SECURITY
I should start by explaining how I am using the term ‘security’. I am not particu-
larly focussed onwhat is sometimescalled national security.Talk of national secur-
ity tends to lead us to treat crimes of terrorism or crimes concernedwith o⁄cial
secrets as distinctive. National security, it is sometimes thought,can justify special
measures in criminal justice, and in the context of terrorism has provided part of
the argument for an increasingly expansivecriminal law. For example, some may
think that because national security is at stake, we can justify criminalizing pre-
paration to commit acts of terrorism,
3
in contrast to ‘ordinary’ crimes where an
attempt is complete only if the defendant takes steps that are more than merely
preparatory to the commission of the complete o¡ence.
4
I am interested in security in a broader sense: in the way in which crimes are
createdwith the purpose of making us more secure from a range of di¡erent bad
things that might happen to us.You are securewith respect to some bad thing in
inverse proportion to th e riskof that thing happeningto you.The greater therisk
of being murdered, say, the less secure you are from being murdered. Criminal
o¡ences are created to make it less likely that such bad things will happen to
you,and hence to make you more secure. In this sense, we can talk about security
with respectto any bad thing that mighthappen to you.We are secure from £ood-
ing in inverse proportio n to the risk of being£ooded.We are securefrom a disease
in inverse proportion to the risk of being infected with it. A nation is secure in
inverse proportion to the risk of it being destroyed by terrorism or invasion.
Thinking about iti nthis way, we should anticipate that a general theoretical ana-
lysis of securitywill have implications for national security. The threat to national
security is taken to be one amongst a range of threats that we might face and that
the state hasreason to meet. Nationalsecurity is distinctivewith respect to what is
threatened ^ the state ^ but, I suggest, that should not lead us to consider national
security in isolation from security from other bad things that might befall us.
3 As in Terrorism Act 2006, s 5.
4 Criminal Attempts Act 1981,s 1.
VictorTadros
941
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(6) 940^970
To continue reading
Request your trial