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Theories of Punishment



Andrew Dawson, the self-proclaimed and ironically named ‘Angel of Mercy’, was handed a life sentence in 1982 after brutally stabbing to death a 91-year-old man in his flat. Within weeks of his release in 2010 he had murdered two more people. This time the sentencing judge, Mrs Justice Dobbs, declared, “life will mean life”. Is he being punished out of retribution, deserved for his offense? Is his sentence a deterrent to others? Is he being punished out of necessity, to make sure he cannot reoffend again? Or is it that through punishment we aim to reform Andrew Dawson? These are the questions that underpin my response. First, however, I must define ‘punishment’ and ‘criminal’.

The Stanford Encyclopaedia of Philosophy says that legal punishment is “intended to be both burdensome and reprobative”. I would add that punishment could also be intended to reform a criminal; in ‘restorative justice’, offenders meet their victims to understand the harm they have caused. Secondly, for clarity, I would define a criminal as someone found guilty of a crime by a court.

One of the most popular reasons for punishing criminals is ‘retributivism’. Here, a criminal should pay for what they did wrong through a proportionate and deserved form of justice or revenge – or ‘just deserts’. This is a deontological argument that someone who does evil has a duty or a right to be punished; they must suffer for what they did. This idea is closely linked to lex talonis – ‘an eye for an eye’. Indeed, retribution and incapacitation were the main factors behind the punishment of Andrew Dawson. Clearly his life sentence did not imply rehabilitation. This preference for retributivism can also be found among the general public.

There is a deep-seated intuitive belief among humans that we are “hardwired to react punitively to crime” and that humans with such hardwiring are “evolutionarily” favoured by “natural selection”; we punish criminals due to a psychologically ingrained imperative. Not only do we attach such importance to punishment because we instinctively believe it to be the most appropriate form of action, but also because we have an innate desire to punish others to make us feel better about ourselves. Our self-righteous moral condemnation of others acts as a self-vindication of our own morality.

Another reason why we favour retributivism as a theory of justice is that we see punishment as an “inherently retributive practice”. Indeed for both Kant and Hegel, punishment is equal to retribution; when we punish criminals we automatically and unconsciously equate that punishment to retribution. This subliminal reasoning perhaps stems from our childhood, where retributive punishment is the norm for doing wrong. Retributive punishment may also be preferred as it can “gratify the public desire for vengeance”. Similarly a retributive punishment removes the need for a victim to seek revenge outside the law and signals respect and care for the victim, acting as a tool of closure and pacification.

However, retributivism is flawed, which can explain why we do not rely upon it alone. The idea of proportionate repayment is vague and subjective; it does not “provide a non-arbitrary starting point or end point of severity”. This, combined with the emotional appeal of inflicting punishment, can lead to unjust, overly harsh sentences. Therefore, to be justified, these punishments need to serve a further purpose.

It is often said that punishment can act as a deterrent to further crime. Deterrence works in two ways: to deter the same person (‘specific deterrence’), and to discourage other potential criminals (‘general deterrence’); in both cases from fear of punishment. Deterrence acts as a symbolic confirmation of society’s rules, so that people “may be deterred from doing wrong”; we punish people for the “sake of prevention”. Repeated confirmation of society’s rules can educate through internalisation of these repeated ethical values. This utilitarian justification is an example of a forward-looking rationale, as opposed to the retrospective reason for retribution.

Deterrence is used to validate society’s imposition of punishment on others by aiming to construct a safer society. At a surface-level, deterrence seems a compelling reason for punishing criminals: reducing crime is obviously a desirable aim. However, there is very little empirical evidence to show that deterrence is effective, as shown by the case of Andrew Dawson. This is partly because crime is often opportunistic and does not involve a rational consideration of the risks and the benefits. Additionally, in order to have a greater deterrent effect, there is pressure to increase sentences, which can risk injustice. Furthermore, deterrence is, arguably, deeply immoral, as we are instrumentalising the criminal. Kant under his belief that punishment is a categorical imperative (an unconditional moral obligation), believes that we must treat “persons as persons and, accordingly, ought to treat them as ends, not means”. Punishing people as a means of deterring others is immoral and has the effect of “degrading criminals and plunging them further into crime”.  This is the opposite of deterrence.

A less degrading motivation for punishing criminals is rehabilitation. This is using punishment to reform an offender, to make them a law-abiding citizen. Through offering the criminal the chance to rehabilitate himself, we avoid treating him as a means but rather, as Hegel would say, as a “rational being”. Through our expression of condemnation and his punishment the criminal can undergo moral education and reform. Rehabilitation can be a beneficial punishment as the criminal can reform and become a productive and harmless member of society. There are two driving factors behind the use of rehabilitation. The first stems from utilitarianism; society benefits from a productive and lawful citizen. Secondly, the individual can reorientate himself and make amends. Furthermore, rehabilitation offers an opportunity for reformation; and we can repress our guilt over exerting God-like power and determination over criminals’ lives. However, rehabilitation is expensive and “allocates scarce societal resources away from other, more deserving groups”. Punishment cannot be justified solely by rehabilitation.

Another justification for punishment is incapacitation: preventing a criminal from perpetrating further harm towards society. This is broadly compatible with the idea that we should punish offenders out of necessity, that the punishment is necessary for the greater good of society. Cicero said “the safety of the people shall be the highest law”. This is a compelling argument. The greatest justification for our act of passing judgement and punishing others is that we are compelled to do it. Cesare Beccaria, the Italian criminologist, stated “the purpose of punishment, therefore, is none other than to prevent the criminal from doing fresh harm to fellow citizens”. Under this, incapacitation may be seen as the greatest justification for punishing criminals. Furthermore, we must punish criminals out of necessity in order to create respect for the law. “An individual is more likely to voluntarily comply with legal codes when he or she perceives that the system treats people fairly”. If some criminals escape conviction whilst others receive overly harsh sentences, people are less likely to obey the law. That is why it is so important that justifications such as deterrence and retributivism do not lead to unfair judgements. However, punishing people to incapacitate can be extreme, such as cutting off the hand of a thief as in Sharia Law (5:38-9).

One of the most revealing answers for why we punish people is contained within the title question itself. If we think laterally, we can invert it to ‘what happens if we do not punish criminals?’ Herein lies the most compelling reason as to why I think we punish criminals. We punish criminals out of necessity; if we did not then we would risk immorality and anarchy. However, I believe we also punish criminals from a psychological necessity that favours retributivism. As a society we believe that people must be punished. Retributive punishment is an entrenched belief, stemming from evolution and lessons learned in childhood: it is as simple as cause and effect. Why do we punish criminals? It is the only thing we know to do.

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Sado-Masochistic Homosexuality: A legal case study



R v Brown (Anthony Joseph) [1994] 1 A.C. (HL)

 Facts of the case

The appellants, a group of sado-masochistic homosexuals who, stimulated by drugs and alcohol, willingly and enthusiastically participated in acts of violence for sexual pleasure. The appellants were all above the required age of 21, but there was limited contact with a 15 year-old male, “K”. The activity took place in private; no complaint was ever made to the police; there were no permanent injuries or infections; safe words were used, and no medical attention was ever sought or required. Whilst the activity was recorded, it was not intended to be seen outside of this group, nor sold for profit. The police discovered this activity coincidentally through the course of Operation Spanner. Yet, there is some dispute as to whether animals were involved or not, which if they were would amount to an offence under s12 of the Sexual Offences Act 1956. Most importantly, with the possible exception on one occasion, everyone consented to this activity.

Outcome of the case

The court upheld the convictions and dismissed the appeal by a majority of 3:2. Lords Templeman, Jauncey and Lowry dismissed the appeal since it was argued that it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason. Underlying this decision are two further claims: (1) where the victim has suffered harm which is actual bodily harm or worse, then the victim’s consent is no defence, and (2) the satisfying of sado-masochistic libido is no good reason. The majority also held that Articles 7 and 8 of the European Convention on Human Rights have no application here, to which the dissenting judges also agreed partially.

Lord Mustill and Lord Slynn dissented on the basis that consent is a valid defence, except in cases of grievous bodily harm or death. Lord Mustill, having assiduously examined previous cases, thought the court to be free to consider this case afresh, since the earlier cases were inconclusive. Lord Mustill used the doctrine of autonomy to posit that the law should not intrude on the private life of an individual. Lord Slynn disagreed with the majority in that such cases of private affairs, public interest should declare the defence of consent invalid.

Context of the decision

The relevant law surrounding consensual violence before the decision centres around one common law principle and three common law cases. I am discounting the Wolfenden Report because its somewhat dubious clauses only have influence amounting to the enactment of the Sexual Offences Act 1967.

Common law principle

That consent is a valid defence to common assault.

 Reg v. Coney (1882) 8 Q.B.D.

This decision held that a prizefight in public was unlawful – actual bodily harm or serious bodily harm is unlawful, notwithstanding the consent of those involved.

Cave J. argued that a blow not struck in sport and is likely or intended to do corporal hurt is an assault, unlawful and a breach of the peace, thus the consent of the person struck is immaterial. Cave J. said at p. 507

“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it.”

Stephen J. added that consent is also not a defence when the activity is injurious to the public as well, and it is not in the public interest that the lives of the prize-fighters be endangered.

Rex v. Donovan [1934] 2 K.B.

This held that a private beating amounting to common assault for sexual gratification is unlawful. All of the judges disagreed with the reasoning in this case because of the common law principle stated above. Therefore, the decision in R v. Brown seems to overrule this case, thus changing the law. Yet this case may have importance in that it argues the offence is irrespective of consent.

Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715

This decision held that a fight between two consenting young men was unlawful because it was not in the public interest. Indeed, Lord Lane C.J. said at p.719

“It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason…it is immaterial whether the act occurs in private or in public.”

The position of the law before the case was roughly straightforward. However, there was a lack of clarity in the decision of Rex v. Donovan, which contradicts the common law principle for no good reason. But Coney and the Attorney-General’s Reference are both consistent with each other and the common law principlewhich leads me to disagree with Lord Mustill’s historical summary of previous cases that he asserted were inconclusive. Coney posits that actual bodily harm or worse cannot be consented to, and also adds that consent is not a defence when the activity is injurious to the public; the Attorney General’s Reference concurs on the point of public interest too.

Thus the decision in Brown affirmed the common law principle that common assault can be consented to (this underlies the court’s rejection of Donovan). The court’s decision also confirmed Coney as it states that actual bodily harm can only be consented to with good reason; in special circumstances such as boxing, which is properly regulated (Queensbury Rules), and conducted (with a referee and medical practitioners close by). Furthermore, the Court also reasserted the public interest measure, thereby also confirming Coney and the Attorney-General’s Reference.

It follows that this decision changed the law in Donovan and added the special circumstances exception to the charge of actual bodily harm or worse: it can be consented to with “good reason”.

Critical commentary

I believe that the court did reach the right decision for the following reasons:

  1. The court’s decision is consistent with earlier cases

As explained above the court’s decision is consistent with the ratio in both Reg v. Coney (1882) 8 Q.B.D. and Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715.

The line of actual bodily harm was chosen because it is consistent with the Attorney General’s Reference, not because it was easier to differentiate between no injury and some injury; it differentiates between actual bodily harm and common assault, the latter being less serious. The dissenting view that the standard of harm should be grievous bodily harm is based on no authority.

Furthermore, the court rightly holds that these acts were malum in se, and the issue of consent is not relevant. Consent is a defence in acts where there is a good reason. Boxing is permitted since it is conducted with rules, doctors and referees. The unregulated, drug-incensed activity of the appellants is unsafe and thus not a good reason.

Lastly, whilst horseplay (which has no intent to harm) has been seen as a good reason (Reg v. Bruce (1847) 2 Cox C.C. 262, Aitken [1992] 1 WLR 1006, Jones (1986) 83 Cr App R 375), I would hold that this reasoning is flawed and that does not have any impact on the present case. It is for Parliament to decide on the exceptions, such as horseplay and, in time, sado-masochism.

  1. The court is right to accept the use of the Offences Against the Person Act 1961 – it is not inappropriate

Firstly, it should not be relied upon that consent was not mentioned in the statute, as it is usual for such acts to use absolute language and leave definitions to the court[1].

Secondly, if it were construed otherwise the result would be that the infliction of serious physical injury should be exempted from the act, which is the very thing the act was enacted to protect against. The act is directed at protecting the person of individuals.

Lastly, it should be noted with care that legislation should be used to commit an act even if that legislation was not originally intended to prosecute the act. One needs only to remember the countless judgments of Lord Denning or the recent upskirting scandal involving Gina Martin, where the Metropolitan Police reopened the investigation of the basis of an old common law against ‘outraging public decency’.

  1. The court was not moved or influenced by personal morality

The court clearly acted in line with previous cases and the presence of disgust to these acts (which all judges shared) is the most humane and just reaction, and a judge must be humane and just. Furthermore, since all judges were repelled by these acts the argument that three were repelled so they dismissed the appeal and that two were repelled so they allowed the appeal is contradictory and made without proof. The oft-quoted statement of Lord Templeman that “pleasure derived from the infliction of pain is an evil thing” is in fact perfectly justifiable and sensible, and it is perfectly reasonable that a judge should pass moral judgement (provided it does not inform his judgment) in order to uphold societal values.

  1. The court was right to interfere with private affairs

This case clearly demonstrates the limits to the autonomy principle in favour of the welfare principle. Autonomy left unbound soon becomes no autonomy. As Cicero said, “we are slaves to the law so that we may be free”. Paternalistic laws, even those that are not utilitarian in nature, are often proclaimed as life-saving. One immediately recalls the law requiring each person to wear a seatbelt in a car.

Overall, I find the court’s decision to be satisfying and their view that Parliament should legislate on this matter as entirely appropriate and in line with parliamentary sovereignty.

[1] L.Q.R. 1993, 109(Oct), 540-544

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Recent Case of Charlie Gard – Who Knows Best?



doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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Legal Reform: Social Norms and Technology



In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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