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Human Rights European Convention

Info: 3515 words (14 pages) Essay
Published: 7th Aug 2019

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Jurisdiction / Tag(s): EU Law

“The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant…” – John Stuart Mill.

The above statement seems to suggest that a conduct/omission should only be criminalized when it brings harm to a person other than the person who commits the action and that the immorality or the harmfulness of the person’s action are not the basis for its criminalization.

Critically discuss the above statement in light of the principles by which criminal law is enacted and the European Convention on Human Rights.

In doing this assignment, students are expected:

a) not to merely regurgitate the law;

b) to expound on the principles and method by which criminal law is enacted and to evaluate the same;

c) to discuss and criticize whether conduct/omissions should be criminalized based on morality and harm;

d) to consider the impact such criminalization would have on a person’s rights; and

e) students are encouraged to seek articles from the Internet provided due acknowledgment is given.

Suggested additional reading:

a) Dworkin, G. (1999), ‘Devlin was Right: Law and the Enforcement of Morality”, William and Mary Law Review 40:927

b) Hart. H, (1963), ‘Law, Liberty and Morality’ (Oxford:OUP)

c) Buxton, R, ‘The Human Rights Act and the substantive criminal law’, (2000) Crim LR 331


The excerpt of the question was a statement made by John Stuart Mill (1806-1873), a philosopher and one of the leading advocates of utilitarianism and liberalism. In his work On Liberty, he clearly articulated the Harm principle, which postulates that government should not forcibly restrain people from engaging in victimless crimes, people are entitled to be left alone whatever they like to do so long as they do not harm others, such as personal drug usage and vagrancy. The state should only intervene to restrict autonomy when it is essential to prevent harm or serious offence to others.

Criteria For Criminalization And Definition

What amounts to a crime? One will regard crime as something which is acting against the law and ends up being punished by paying a fine or even by being sentenced to imprisonment. There is a wide extent of acts or conducts that can be the basis of crime offences. Is it possible to define a crime? And further yet, what are the criteria for criminalization?

A crime, in the sense of formal legal definition, can be defined as what the state identifies as crime is a crime, and is subjected to state sanction. Indeed, there is no straightforward checklist or agreement as to criteria for determining wrongfulness. However, generally three types of certain characteristics that can be found in a conduct which is criminal. The first characteristic – types of conduct which is contrary to social consensus of moral views (relating to legal moralism). Secondly, an act which causes harm or serious offence to others may also be criminal (relating to liberalism or harm principle). Lastly, conduct that brings harm to others or in a situation where no victim is involved (relating to paternalism).

The Underlying Five Principles And The Perspective Of Human Rights

There are also five principles which were suggested by several commentators to underpin the English criminal law. It must be clarified that these principles are not in any sense strict rules which followed throughout the criminal law but they are proposed by some as principles to which the law should lie in line with it, namely the principle of legality, principle of responsibility, principle of minimal criminalization, principle of proportionality as well as principle of fair labelling. The Principle of Legality requires a crime be clearly stated to ensure that public understand the essence of it and capable of being obeyed. Principle of Responsibility requires that a person only be found guilty for the offence he has committed. Principle of Minimal Criminalization articulates that only serious offences which are adverse to society should be criminalized but not trivial one. Additionally, the Principle of Proportionality lays down the rule that sentences for a particular offence must be in proportion to the degree of seriousness of that particular offence. The last principle is the Principle of Fair Labelling, which lays down the rule that every offence must have a detailed description match to the wrong done and cater for any possible variation of the offence.

While in the perspective of human rights, a crime constitutes when it violates the conception of fundamental human autonomy. Such definition also expands to the oppressive practices such as discrimination towards other race, sex and class-based exploitation.

Criminal Law And Morality

Criminal law is alleged to be a “legal enforcement of morality “. First of all, let us think about a historical and a causal question: Has the development of the law been influenced by morals? The answer will be a definite “yes”. Its view originated of an ancient pedigree, Plato in his Laws stated that the lawgiver ‘shall lay down what things are evil and bad, and what things are noble and good’. A proponent of this view, Lord Devlin asserts that society’s moral forms the social fabric, if morality is not underwritten by the law social harmony will be jeopardized in result. Then he explained that a public morality is one of the vital ingredients of a society, and that the State has the right to protect anything which is essential to its existence. This statement had answered the first two questions he proposed as interrogatories affirmatively. As a result, moral laws are justified to ensure the cohesion of society against the disintegrating effects of actions and necessary to penalize immoral behavior.

However, immorality cannot be a sole basis of criminalized conduct, since many forms of behavior have been criminalized on grounds of social expediency rather than because of their immoral nature. As Gross states, there is to be found which the majority of citizens share a common core morality which is a more fundamental element of society even than the law, moral rules tends to vary over a period of time as response to social and political factors. The French sociologist, Durkheim (1983) had pointed out the fact that in a modern, developed society, it is difficult to pinpoint a set of moral values shared by all, even though they largely agree on some basic points.

It was illustrated in the case Re A(Conjoined twins: Surgical Separation)(2001),it concerned the legality of an operation to separate Siamese twins which would result the weaker twin to death, though it was the only chance to save the another twin. The Court of Appeal explicitly stated that it was not only a court of morals but a court of law and their decisions have to be taken from a solid base of legal principles. It illustrates that the test of immorality is not a very holistic test on the basis for criminalisation.

Criminal Law And Harm Principle

The opposing view, the harm principle, was first expressed by J.S. Mill -the only legitimate purpose for which legal coercion could be exercised over any member of a civilised community is to prevent harm to others. He was of the opinion that immorality is not sufficient condition although it is necessary for criminalization. It was supported by Joel Feinberg by definition of harm as ‘those states of setback interest that are the consequence of wrongful acts or omissions of others’.

However, there are several criticisms raised in respect of Mill’s view. The first criticism, which is harm restricted to ‘physical harm’ or does it include any violation of any other recognized interest? Does the term ‘harm to others’ includes threats to psychological integrity , sexual autonomy, freedom from discrimination and economic interest? What if the fact that somebody action do not cause another direct and physical harm but most likely to become a risk in future. Secondly, what is the actual range of ‘others’? This issue is clearly illustrated in the debate over experimentation on embryos and abortion: does harming an unborn child constitute causing harm to another? A similar standpoint was also contended by Professor Hart, stated that cruelty to animals should be criminalized, even if there is no harm caused to other people as prescribed by the Harm principle. Additionally, is damage to public goods a harm in the fact that not all offences are created to prevent harm to another, but harm to society as a whole, rather than identifiable people?


As mentioned above, the ‘legal paternalism’ approach safeguards individual from harming others and also himself. Paternalists tend to advance interest over incompetent parties, such as mental retarded, children or those whose abilities to make decision are compromised by duress or ignorance. Paternalists hold that the law is entitled to interfere with a person’s autonomy for his own good and to enhance his welfare – for instance, possession of prohibited drugs, consensual sexual intercourse between male adults and sadomasochistic activities should be prohibited. It acts as a paternalistic role to be a legal safeguard, protecting weaker members of society from coercive or degrading exploitation.

Legal paternalism and the harm principle come into contention when these three circumstances, consenting others to harm, competent self-harm and harmless acts. Paternalists in the point of view to regulate these but proponents of J.S. Mill’s harm principle accept these in respect of victimless crimes (if a person consenting others to harm is not a victim).

In fact, legislation of this kind is always supported by modern harm theorists. These behaviours at first sight seem to only expose the actor to the risk of harm, but the prohibited behaviour is potentially harmful to others. The individual who consumes drugs or who drives without wearing a seat belt may involve public harm. In addition, other susceptible individuals may ‘model’ or copy the wrongdoing and sustain harm as a consequence.

Debate Between Morality And Harm Principle

Whether a conduct ought to be a crime due to its immoral nature or basis of prevention of harm has been the subject of vigorous debate when the government set up a commission to determine whether the laws on homosexuality and prostitution should be charged. The Wolfenden Committee recommended that homosexuality and prostitution should be decriminalized on the ground of the purpose of criminal law as they expounded in the report: to protect the citizen from what is offensive and injurious…The law should not intervene in the private lives of citizens…. This view was challenged by Lord Devlin, who argued that public morality which is central to well-being of society. The lawmaker must take public morality by the standard of the right-minded person into consideration as it represents values shared by a society. As opposed to him, Hart, a proponent of J.S. Mill, rebuts that using law to enforce moral values was undesirable, unnecessary and morally unacceptable so long there is some form of immoral conduct but not an illegal conduct.

Judicial support for Devlin’s view in Shaw v Director of Public Prosecutions, Lord Simonds asserted that courts enacting law not only conserve the safety and order but also the legal implementation of moral. Subsequently, this particular rule of law caused homosexual conduct between consenting male adults as an offence to be repealed by the Sexual Offences Act 1967.

Nevertheless, in R v Brown, House of Lord held that public policy demanded commission of acts of sadomasochistic or homosexual men be treated as criminal offence. This decision divided the House of Lords and prompted two Law Commission Consultation Papers and provoked controversy from academic fraternity. Following the debate between Devlin and Hart, Warnock Committee, was set up by government to consider issues relating to scientific advances concerning conception and pregnancy. The question arose that whether embryo for use in medical experiments is justified or not. The Committee’s report recommended that experiments on embryos up to 14-days-old should be lawful; the reasoning incorporates features of Hart’s utilitarian approach, and Devlin’s upholding of common morality on the ground that utilitarian approach is balanced against issues of morality.As it shows, issues of law and morality cannot easily be distinguished into distinct theoretical approaches.

Lord Devlin’s argument relies on an unacceptably loose concept of morality, what is ‘offensive’ or ‘indecent’, or what amounts to ‘exploitation’ or ‘corruption’. In Wolfenden terms, this only makes sense if we use the measure of society’s morality. If certain behaviour evokes feelings of indignation, intolerance and disgust among ordinary person, and there is sufficient indication shows that the behaviour threaten the common morality thus it ought to be outlawed by society’s mean. However, it had been rebutted due to the feeling of ordinary people may be more of prejudice and superstitious than of moral judgement. We incline to judge certain behaviour in terms of ‘morality’ to be grounded in moral value as well as in feelings. A theory about morality and the criminal law must be based on a defensible definition of morality. In other words, those reasons ought to be consistent with other standards used by that individual as well. Devlin proposed that moral standard could be discovered by the 12 men or women in the jury box (‘a right-minded person’), and asking them to reach decisions unanimously on certain types of behaviour. However, not only would this method embody the minority of society, it might fail to elicit agreement on some controversial subjects such as abortion and enactment of wearing seat-belt. In a nutshell, Devlin’s view focuses on the needs of majority and tends to be pragmatic.

Devlin’s opponents would have tended to be in the individualistic liberal tradition. According to this view, the law should respect the autonomy of each individual above all, as the thrust of European Convention on Human Rights (ECHR), preserve individual right: democratic rule by majority should not trample on the rights of individuals. They proclaimed that morality is not sufficient to justify an act as legal prohibition. In fact, this view has stronger foundations than Lord Devlin’s since it is distinctly a moral theory. Hart’s criticism of Devlin’s social cohesion argument is twofold. First, he rebutted that a society need to have a common morality in Devlin’s assertion. Hart believes that every society must have rules restricting deviant behaviour and violence and it was embodied in law. This morality is commonly shared by societies, despite its detailed enforcement varies. Secondly, even supposing a society does have a shared morality peculiar to itself, there is no good reason to believe that its preservation is necessary to the survival of the society, telling lie is one of the instances. It is always possible that the majority may wrongly conclude on behaviour and they will able to make more informed judgments if they can see the example of so-called “immoral” behaviour. If there is a social demand for these activities, which continues to be met despite illegality, through such means as black market drug supply or back street abortion. There is no proof of the benefits of prohibition of such immoral activities will outweigh the advantages of decriminalization, therefore there is no good reason to prohibit them despite it appears as immoral. After all, Hart’s viewpoint goes against the dangers of “populism”. Although it may seem prudent for the lawmaker to acknowledge the ‘feelings’ of a section of the community, legislator should not rely upon the ‘stomach of the man in the street’ to make law. Disgust or revulsion ought never to replace careful investigation of the social effects of prohibition.

European Convention On Human Rights And Criminal Law

The Human Rights Act 1998 came into force on 2 October 2001, it aims to enhance the effect provided in statute the protection afforded to individuals under European Convention on Human Rights. It is implemented to be in relation with evidence and procedure of enactment of criminal law. The Human Rights Act 1998 requires the courts to interpret legislation in consistency with the European Commission on Human Rights and outlaws a public authority from acting in a way ‘which is incompatible with Convention Right’. Section 6 of the Human Rights Act 1998 requires all public authorities, in particular courts to act in compliance with the Convention. Courts also have a duty under S. 2 of the Human Rights Act 1998 to ‘take into account’ decisions of the European Court of Human Rights and of the European Commission on Human Rights. Therefore, the content of rights conferred was by the European Convention on Human Rights, and thus of Convention rights created was English law by the Human Rights Act 1998.

Nevertheless, some conducts are criminalized on grounds that infringe the rules as mentioned above. A general rule of criminal law before convicting to a criminal, the coincidence of guilty act and guilty mind must be satisfied before conviction. Art. 6 of European Convention on Human Right reinforces this and provides a detailed right to a fair trial. However, strict liability is derogated from rules mentioned, which offence can be convicted without proof of mens rea. Meanwhile, it tends to contradict the principle of responsibility, as people should be accountable only if they have a guilty mind at the time committing crime. Another example will be United Kingdom has departed from Article 5 so as to introduce extended detention without trial under the Prevention of Terrorism Act 1984 and indefinite detention without trial for foreign nationals under Part IV of the Anti-terrorism, Crime and Security Act 2001. Article 5 of European Convention on Human Right provides that everyone has the right to liberty and security of person, even though such arrest on suspicion of a crime is allowed by means of lawful arrest. The right of to be informed in a language one understands of the reasons and the right to prompt access to judicial proceeding has been neglected. In the meantime, it contravene the Principle of Fair Labelling, which requires that the description of the offence must be specific and match the wrong done giving the fact that suspect will not be informed offence whose committed in any manner.


The fact that harmfulness of a particular behaviour cannot be a sufficient warrant of prohibition, neither can morality. The virtue of harm theory is that, at least, it focuses attention on the practical issues concerning the social implication of that conduct, issues which the moral principle patently ignores. Nonetheless, evidence from past years also suggests the view that law is enacted base on the moral welfare of the State; despite moral consideration is not enough condition in determining the reach of the criminal law.

In practise, the justification of enactment of particular offences may differ. Some offences are enacted to protect society from harm; others may formulate base on morality, or even other criterion. In order to proscribe activities or conduct, this requires a balanced consideration between morality as well as prevention of harm. The assessment of whether a criminal sanction is ought to be or necessary to fulfil the purpose of criminal law. Alternatively, other considerations that may need to be taken into account include whether the law can be fairly enforce and whether the State has a definitive interest in regulating the acts which an individual involves no victim and does in private. To sum up, there is no clear-cut principles laid down as to determine the criteria of criminalization. Likewise, even though conduct is immoral and harmful was not a good reason to criminalize it. Criminal law is created to reflect the needs of society, as to safeguard a better and safe life of individuals. Hence, the State must take into consideration not only the morality, harm principle and virtue of paternalism, but also popular will in criminalizing a particular conduct, on the basic that do not impede the exercise of individual autonomy or in violation of European Convention on Human Rights and the five principles.

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