One of the principle features and, one could say, pillars of our ‘criminal’ law is to establish parameters for our behaviour. After all, unfettered behaviour leads to anarchic behaviour. So society creates a line which it expects will not be crossed and, should it be, those that have done so will be asked to explain themselves and, potentially, punished, if deemed to be ‘guilty’.

Law and Morality – The Ought

In essence then, the criminal law is effectively endorsing a ‘moral code’ and seeks to identify and punish what society would generally agree are the most egregious crimes in society (murder, rape, crimes against children, to mention but three). Moreover, we frown on theft, dishonesty and an infringement upon our right to live peacefully. It is clear, therefore that there is a palpably clear link between what we generally agree are immoral acts and our own definition of law (in certain respects).

But, having established that ideology, I suspect without too much excessive debate or argument, it is then necessary to look at ‘other’ crimes and offences which do not seem to irritate our moral filter. One can think of varying traffic violations such as parking offences and not paying for a ticket in a car park. These do not, inherently, cause ‘harm’ to our fellow citizens, yet they are still ‘law’……but why?

There are those that maintain that ‘criminal behaviour’ should also necessarily be ‘immoral behaviour’. This is because if we are not necessarily outraged by instances which we believe are morally unacceptable, it weakens the basis for the criminal law in the first place. That is not to suggest, however, that overt actions (with ‘intent’) should not be somehow punished. That must still apply or selfish lawlessness would prevail. But should we consider acts such as parking on a double yellow line be classed as ‘criminal’. Should there be another way of describing and indeed punishing them?

As an ‘entity’, the criminal law exists to hold people liable, responsible if you like, for their behaviour. Actions, as we know, have consequences after all. We must factor in the criminological concept of ‘rational choice’ so that in order to fully hold our citizens to account for the commission of a crime, we must be satisfied that they are capable of understanding what they are doing, have done and, crucially, could have chosen not to do it. The intrigue occurs, in my opinion, when we classify certain acts which we would largely agree are ‘wrong’. That is very wrong, repugnant even, in regard to murder, rape and paedophilia but not, generally, lying (except of course under oath), adultery and even breaking one’s word.

Legal rights are not all right: when morality and the law collide | OUPblog

Some consider that cheating on one’s marriage partner has more far-reaching and potentially devastating consequences(mental health, illness and even suicide) than the starving single Mum stealing a loaf of bread for her 4 children. Yet the former has committed no criminal legal wrong at all (whilst still attracting ‘consequences’ for their behaviour, but not ‘punishment’, per se) but the latter will have, at the very least, a criminal conviction for a crime of dishonesty (and all the implications that accompany that) and, possibly a more severe penalty. What does our moral code say about that none too improbable or rare scenario? My own feeling (without, of course condoning the theft) is that moral outrage may very well rest with the adulterer and not the petty thief.

An interesting issue arose in the Scottish criminal appeal case of Paterson v Lees (1999) SCCR 231. The appellant was charged with ‘shameless indecency’ (no longer a crime in Scots law – replaced by ‘public indecency’) by allowing children that he was babysitting to watch an indecent video. It was accepted that the children themselves had switched the video on, but the appellant opted to take no action once he became aware of the situation and the content of the video. At the time, Lord Rodger of Earlsferry commented that:

‘The fact that the appellant sat back and allowed the children to watch an obscene and indecent film is deplorable and no right-thinking adult would have done what he did. Saying that does not, however, answer….whether the appellant has behaved criminally (as opposed to anti-socially or immorally)’.

The Morality of Tax Avoidance — Adam Smith Institute

Perhaps to many a surprised reader of this blog, the court answered the question by stating there is a marked difference between the terms and Paterson’s conviction was duly quashed. In doing so, then, a clear line in the sand was drawn between ‘immorality’ and ‘illegality’, however much that line may often seem blurred. We can deduce, unequivocally, that not all immoral conduct is criminal. Conduct can be considered ‘wrong’ but as soon as it is deemed to be an act of criminality, it becomes ‘wrongful’. At that point, it can attract the full force of the criminal law and all the potential ‘consequences’.

Law and morality – a fascinating, if slightly convoluted area.

Stay safe.