Penalties in the Penumbra of the Criminal Law
| Author | Gary Slapper |
| Published date | 01 December 2008 |
| DOI | 10.1350/jcla.2008.72.6.527 |
| Date | 01 December 2008 |
| Subject Matter | Opinion |
OPINION
Penalties in the Penumbra of the Criminal
Law
Gary Slapper*
Professor of Law, and Director of the Centre for Law, The Open University
From time to time events show that some aspects of civil law would be
improved if they adopted elements of reasoning held as axiomatic in
criminal jurisprudence.
Generally speaking, a wrong entailing the possibility of a penalty is,
ipso facto, a crime. But that is not strictly true. It all depends on what one
means by a penalty. That is a word which carries no lapidary legal
definition. It is always interesting, therefore, to look at instances of
penalties imposed on people whose wrong is outside the boundary
of the criminal law and where the penalty is not one from the menu of
criminal sentencing. It is interesting because such instances focus atten-
tion on what reasoning common in the criminal law might usefully
osmose into areas of civil law.
Two recent instances raise such issues: the decision of the Chancellor
to impose indirect tax penalties on citizens with certain classifications of
vehicle, and the local authority registrar who claimed in an employment
tribunal that she was being penalised for her refusal to participate in civil
partnership ceremonies. In the former case a quasi-penalty has been
imposed but should not have been, in the latter a quasi-penalty should
have been imposed but was not.
The announcement of the Chancellor Alistair Darling that vehicle
excise duty on cars in the top half of the pollution tables will be raised via
the 2009 Finance Bill is not posited on a dubious idea if applied to future
vehicle purchases (Hansard, House of Commons, 5 June 2008, col. 905).
Differential vehicle taxing in order to deter high-scale damage to the
environment is a sensible policy. To impose such penalties on cars
registered since 2001, however, offends against a basic principle of
justice: the principle against retrospective law.
Under the proposed scheme, approximately 2.3 million families will
each have to pay between £100 and £245 additional car tax on cars
which they already own. It is one thing for a government to want to
guide citizens’ purchasing choices in the future but it is quite another
to impose what is, in effect, a penalty on citizens for choices they have
made in the past.
The insult to justice by a breach of the principle against retrospectivity
is not compensated by the money that will go to the Treasury. Nor can
the environmental imperative be used as a way for the Government to
* The views expressed in this article are those of the author and do not necessarily
reflect the views of The Open University or The Journal of Criminal Law.
467The Journal of Criminal Law (2008) 72 JCL 467–469
doi:1350/jcla.2008.72.6.527
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