Resorting to crime: the practice of criminalisation
2011-2018
Researchers: James Chalmers, Fiona Leverick, Alasdair Shaw
There has been increasing concern in the UK and internationally about the phenomenon of ‘overcriminalisation’: The 1997-2010 Labour government, for example, is popularly (and wrongly) estimated to have a created one new criminal offence for every day in office. The academy has responded to this by devoting increasing attention to criminalisation as a matter of legal and political theory (what are the proper boundaries of the criminal law?) but for some decades no work has been carried out, other than incidentally, on criminalisation as practice: what new criminal offences are being created, what is their content, and how can this practice be explained and – as appropriate – constrained? The scale of the problem requires that empirical analysis be combined with doctrinal and theoretical analysis. This work was supported by a Philip Leverhulme Prize awarded to James Chalmers.
Early work on this project resulted in the completion of a journal article and book chapter discussing the methodology involved and comparing the criminal offences created during the first year of the current Coaltion government (2010-11) with those created during the first year of the Labour government elected in 1997. (The numbers are substantial: 1760 offences were created during the first year of the Coalition alone, although this figure includes Scottish as well as United Kingdom legislation.) A shorter paper discusses the peculiar fact that significantly more offences were created applying to Scotland than to England in 2010-11 (1223 as against 634).
Further work explored some of the implications of the findings to date (James Chalmers's Current Legal Problems lecture, below) and drew comparisons with criminalisation in the year 1951-52. This work challenges the commonly held belief that the creation of large numbers of criminal offences by legislation is a modern phenomenon. In fact, criminal offences were created at a faster rate in 1951-52 than in 2010-11.
The project was completed with a paper in Legal Studies, reviewing the data generated over the course of the project and arguing that the creation of offences in delegated legislation raises questions of democratic legitimacy and has resulted in criminal offences being created which do not conform to basic principles of fair notice and proportionality of penalty. The paper suggests that these problems can be addressed through a requirement of parliamentary approval for all serious offences and direct participation in the legislative process via consultation as an alternative (or additional) legitimating principle in all cases.
Key publications:
J Chalmers and F Leverick, "Criminal law in the shadows: creating offences in delegated legislation" (2018) 38 Legal Studies 221-241.
J Chalmers, F Leverick and A Shaw, "Is formal criminalisation really on the rise? Evidence from the 1950s" [2015] Crim LR 177-191.
J Chalmers and F Leverick, “Quantifying criminalisation”, in R A Duff et al (eds), Criminalization: The Aims and Limits of the Criminal Law (Oxford University Press, 2014) 54-79. [Those with access to Oxford Scholarship Online can read this chapter here.]
J Chalmers, "'Frenzied law making': overcriminalization by numbers" (2014) 67 Current Legal Problems 483-502.
J Chalmers and F Leverick, “Tracking the creation of criminal offences” [2013] Crim LR 543-560.
Further publications:
J Chalmers and F Leverick, “Scotland: twice as much criminal law as England?” (2013) 17 Edin LR 376-381.
J Chalmers, F Leverick and A Shaw, "Patterns of criminalisation in 1951/52, 1997/98 and 2010/11: a research note", June 2014: June 2014 Research Note.
E Ainsley, J Chalmers and F Leverick, "Patterns of criminalisation: 1951, 1997, 2010 and 2014": May 2016 research note
There is some discussion of the project in James Chalmers’ inaugural lecture, “Resorting to crime”, which has now been published in R Anderson, J Chalmers and J MacLeod (eds), Glasgow Tercentenary Essays: 300 Years of the School of Law (2014) 70-100.