A Critical Evaluation of the Historical and Contemporary Justifications for Criminalising Begging
| Author | Dennis J. Baker |
| DOI | 10.1350/jcla.2009.73.3.570 |
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| Subject Matter | Comment |
COMMENT
A Critical Evaluation of the Historical and
Contemporary Justifications for
Criminalising Begging
Dennis J. Baker*
Keywords Begging; Homelessness, Criminalisation; Human rights;
Punishment
In evaluating the historical and contemporary justifications for the
offences of vagrancy and begging, the first part of this Comment focuses
on the historical roots of the older English legislation. Thereafter, the
contemporary justifications for criminalising homeless beggars are con-
sidered and it is argued that there is no normative justification for
criminalising beggars in the 21st century. The article traces the history of
the offences to demonstrate that the rationale for the enactment of the
earlier laws is no longer relevant. Furthermore, it demonstrates the
justifications for maintaining that such offences are invalid and contrary
to constitutional justice. The 750-year-old offence of begging was en-
acted in a bygone age. It is no longer an appropriate response for dealing
with indigence. It is therefore constructive to trace the legislative history
of the older vagrancy offences in order to define the purpose of such
prohibitions and the harms that they were originally designed to
counter and to contrast that with the contemporary homelessness prob-
lem. In conclusion, it is suggested that there is no historical or normative
justification for maintaining this offence in the 21st century. The con-
tinued criminalisation of begging violates the beggar’s fundamental right
not to be criminalised.
In its crackdown on begging and homelessness in England and Wales,
the UK government has emphasised the harmfulness and offensiveness
of anti-social behaviour and the need for ‘zero-tolerance policing’. The
espousal of such policies with an emphasis on the harmfulness and
intolerableness of so-called anti-social behaviour has resulted in the
criminal law being used excessively and unjustly. The Crime and Dis-
order Act 1998 and the Anti-Social Behaviour Act 2003 have been used
along with other much older provisions, such as s. 3 of the Vagrancy Act
1824, to target beggars. Section 3 of the Vagrancy Act 1824 makes it a
crime to beg.
The government continues to invoke the criminal law in this context
so often that it is time for human rights barristers to think more about
what the substantive criminal law ought to be in light of fundamental
* School of Law, King’s College London; e-mail dennis.baker@kcl.ac.uk.
212 The Journal of Criminal Law (2009) 73 JCL 212–240
doi:1350/jcla.2009.73.3.570
principles of justice such as the proportionality principle. The pro-
portionality principle requires that sentences and prima facie criminalisa-
tion be a proportionate response for dealing with the social problem
being tackled. The Vagrancy Act 1824 contravenes the beggar’s funda-
mental right not to be criminalised, which is not only a moral right, but
also a cardinal constitutional right. This right is found in, among other
provisions, Articles 3, 5 and 8 of the European Convention on Human
Rights.1The proportionate punishment provision ensures that justifi-
able criminalisation is punished proportionately, whereas the general
personal autonomy right, which derives from the privacy and depriva-
tion of liberty rights, requires that any criminalisation be prima facie
justifiable as a proportionate legislative response for dealing with a
genuine societal problem. As considered more fully below, this leads to
a conclusion that begging should be tolerated as it does not result in bad
consequences of an objective kind for others. Its continued criminalisa-
tion is a human rights abuse.
Historical justifications
A historical analysis allows an examination of the larger principles and
rationales that underlie the older statutes to see how they have evolved
over time and to examine the relevance of such laws in contemporary
society. The 185-year-old Vagrancy Act 1824 (hereinafter ‘the Vagrancy
Act’) is still in force in England and is regularly used against homeless
beggars. It is the most recent of a long line of enactments in pari materia.2
There is little doubt that countering harm is the vagrancy offence’s raison
d'être. In order to demonstrate the shortcomings of criminalising home-
lessness in modern society, it is worthwhile understanding the historical
rationale of vagrancy crimes and the harms that the laws were designed
tackle.
Whether the criminal law was ever an appropriate response to beg-
ging is a much wider question than can be dealt with here. Nonetheless,
it is worth noting that the historical literature suggests that at times
begging was considered to be seriously harmful to the collective interests
of society.3The social and economic conditions that led to beggars being
regarded as a major threat to the community in the Middle Ages are
entirely different to those that exist today. There is no evidence to
suggest that modern begging is likely to lead to the sorts of social
1 European Convention for the Protection of Human Rights and Fundamental
Freedoms, 4 November 1950, 213 UNTS 222 (entered into force generally on 3
September 1953).
2 Begging was first criminalised in 1349: 23 Edw 3, c. 1 (1349); 25 Edw 3, c. 1
(1350). The Vagrancy Act 5 Geo. 4, c. 83 (1824) repealed all of the 27 Acts which
were in partial force at that time: Hansard, House of Commons, 1823, 1383. Up
until 1823 there had been 49 enactments on the subject of vagrancy (ibid.). See
also C. J. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging
(Chapman and Hall: London, 1887); L. Charlesworth, ‘Why Is it a Crime to Be
Poor’ (1999) 21 Liverpool Law Review 149, 157.
3Ledwith v Roberts [1936] 3 All ER 570 at 593. See also S. Webb and B. Webb,
English Local Government, English Poor Law History, Part 1: The Old Poor Law, vol. VII
(Frank Cass: London, 1963).
An Evaluation of Historical and Contemporary Justifications for Criminalising Begging
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