Multiple Wrongdoing and Offence Structure: A Plea for Consistency and Fair Labelling

Publication Date01 May 2001
DOIhttp://doi.org/10.1111/1468-2230.00327
AuthorBarry Mitchell
Multiple Wrongdoing and Offence Structure: A Plea for
Consistency and Fair Labelling
Barry Mitchell*
Crimes come in all shapes and sizes, but relatively little work has been done on
offence structure – Robinson’s recent functional analysis is perhaps the one
obvious exception. This article concentrates on incidents of multiple wrongdoing
and suggests that the current substantive law is both inconsistent and confusing.
Burglary, for example, is unnecessarily narrowly defined and should be expanded
to include broadly similar scenarios. The law is confusing because it conflates
qualitatively very different incidents under the same umbrella – serial killers, for
example, commit the same crimes as those who kill multiple victims by one act.
Not only does the law fly in the face of common sense but it conflicts with the
principle of fair labelling – that crimes be defined to reflect their wrongfulness
and severity – which seeks to fulfil some important functions in the criminal
justice system.
Conspicuous by its absence from the growing body of reports and proposals by the
Law Commission for the codification of the criminal law has been any detailed
consideration of offence structure and composition. But this absence is not
confined to the Law Commission’s work, for there has been a relative dearth of
discussion on the topic by reform bodies and commentators generally. A notable
exception to this trend is the recent work of Robinson whose functional analysis of
crime represents an attempt to simplify offences by distinguishing rules and
principles by reference to the functions they fulfil and thereby to make the law
more comprehensible and communicable to the general public, which is seen as a
primary legal goal.1
Clearly, through the appropriate parliamentary procedures, society can create
whatever criminal offences it chooses, in a variety of structures and forms. Prima
facie, there is no reason why these offences should necessarily conform to a
particular format or model; they may differ enormously from one another in their
size and degree of complexity. Focusing on situations in which a person commits
what might be called ‘multiple wrongdoing’2– ie where there are either multiple
instances of (actual or threatened) harm to one interest or instances of harms to
different interests – this article argues that the existing law is inconsistent and
confusing, and on occasion flies in the face of the fair labelling principle. This
argues that the law should recognise widely-felt distinctions between different
forms of wrongdoing. Thus, crimes should be separated from one another and
ßThe Modern Law Review Limited 2001 (MLR 64:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 393
* Reader in Criminal Justice, Coventry University.
1 See most recently Paul H. Robinson, Structure and Function in Criminal Law (Oxford: Clarendon
Press, 1997). Robinson’s proposals are discussed, albeit briefly, later in this article. D.A. Thomas also
criticised law reform groups for failing to adopt a functional approach to the substantive law; see D.A.
Thomas, ‘Form and Function in Criminal Law’ in P.R. Glazebrook (ed), Reshaping the Criminal Law
(London: Stevens, 1978) 21–26.
2 I have chosen ‘wrongdoing’ rather than, say, ‘wrongfulness’ which is a cumbersome word, or ‘harm’
which has been regarded as unsuitable because the substantive law is concerned not only with injury
or damage but also potential harm; see eg Alan Brudner, ‘Agency and Welfare in the Penal Law’ in S.
Shute, J. Gardner and J. Horder (eds), Action and Value in Criminal Law (Oxford: Clarendon Press,
1992) 21–27.
labelled so as to reflect the nature and gravity of the offending.3The principal
argument is that the law could and should recognise more crimes consisting of
multiple wrongdoing, whether the defendant appears to commit just one act (or
omission etc) or more than one. This is preceded however, by a shorter argument
that the scope of some existing crimes of multiple wrongdoing should be expanded.
Multiple wrongdoing and the structure and composition of
current offences
Before looking at the structure of offences under the current law it is appropriate to
briefly define the concept of ‘wrongdoing’ for the purposes of ‘multiple
wrongdoing’ in this article. It refers to an act, omission or state of affairs,4but
that per se is not sufficient. It should also import an element of moral
blameworthiness or culpability which is most clearly manifested in D’s mens rea
in relation to each element of his wrongful behaviour. The presence of a fault
element ensures an adequate degree of voluntariness in the offender’s conduct so
that we can properly regard the behaviour as ‘wrongful’.5For example, in section
9(1)(b) of the Theft Act 1968 (burglary), the law requires mens rea (basic intent) as
to both the trespass6and the ‘further offence’. The definition of robbery in section
8 prima facie suggests that a defendant charged with robbery need not intend to use
force or put someone in fear etc, but since the force must be in order to steal it must
be used or threatened deliberately rather than accidentally.7
Both at common law and in statutory form criminal offences vary considerably
in the composition and complexity of their definition. Some are constituted by a
single act (or omission) whereas others might be more accurately described as a
venture in which the defendant commits several acts. Some are comparatively
‘large’ in that they contain more than one element of wrongful behaviour,
sometimes involving threats to or infringements of very differing kinds of interests,
arising out of several acts, and some involve more than one victim. Burglary
contrary to section 9(1)(b) requires two wrongful acts – trespass in a building (or
part), and some sort of ‘further offence’ (the infliction or attempted infliction of
grievous bodily harm or theft or attempted theft). Indeed, the Criminal Law
Revision Committee (hereafter ‘CLRC’) referred to it as a ‘double offence’.8The
person whose house is ‘trespassed’ may not be the same person as the victim of the
further offence. Robbery also consists of two wrongful acts – stealing and using or
threatening to use force against someone. There are either two completed harms –
the theft and the use of force against the person – or one complete harm and one
3 The principle is discussed in more detail later in the article.
4 Whilst many crimes consist of either an act or omission, some take the form of a prohibited state of
affairs, which Glazebrook refers to as ‘situational’ crimes – being in possession of a controlled drug is
an example – see Peter Glazebrook, ‘Situational Liability’ in Glazebrook, n 1 above, 108.
5 As opposed to ‘harmful’ or ‘undesirable’. See Andrew Ashworth, Principles of Criminal Law
(Oxford: Oxford University Press, 3rd ed, 1999) 110–112; and Andrew Simester, ‘On the So-Called
Requirement for Voluntary Action’ (1998) 1 Buffalo Crim LR 403, 410–413. What makes decisions
in cases such as RvLarsonneurr (1933) 149 LT 542 objectionable is the lack of any voluntariness on
the part of the accused.
6 Trespass to the building may, prima facie, be only a civil wrong, but the need for D to believe at least
that he may be there without permission adds to the overall moral culpability.
7 This seems to be the prevailing view of robbery; see for example, J. C. Smith and B. Hogan, Criminal
Law (London: Butterworths, 9th ed, 1999) 551.
8 Criminal Law Revision Committee, Eighth Report: Theft and Related Offences Cmnd 2977 (1966)
para 76.
The Modern Law Review [Vol. 64
394 ßThe Modern Law Review Limited 2001

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