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Criminal Law Assignment, October 2015

Roger Berkeley BBL2, 14467578

Having read Harts reading, I have discovered a deeper understanding of Criminal Law,
particularly regarding the perspectives dealt with by Hart, viz that of Constitution-makers; the
Legislature; the Police and Prosecuting Attorneys; the Courts in ascertaining guilt and
making decisions; and Prison and Parole Authorities. One perspective that sparked the most
interest with me, however, was that of the Police and Prosecuting Attorneys.
This interest originates in the slightly overlooked nature of those positions during the course
of our theoretical study of law, despite their utmost importance.
Hart notes that "to shift from the perspective of the legislature to that of police and
prosecuting attorneys is to shift from the point of view of formulation of general directions to
that of their application."1 Thus, when we take a closer look at the professions 'on the ground'
as opposed to the heights of law-makers, we see how theory is applied.
Hart gives five ways outlining the perspective of enforcement officials.
1. Police and Prosecuting Attorneys have a wider scope of power than other official
bodies.
The breadth of discretion we entrust to the police and prosecuting attorneys in dealing
with individuals is far greater than that entrusted to any other kinds of officials and less
subject to effective control.2
Although other officials, such as Constitution-makers, the legislature, and the judiciary
have more often than not more academic study done of the law, the greater entrustment
lies with the police, as well as prosecuting attorneys, for the implementation and control
of the law.
This is not a new phenomenon, however. McAuley writes of this great entrustment
originating before the long process of implementing a policing body was completed in
Britain: by the time it was completed with the establishment of organised policing in
1829, the idea that public officials acted on behalf of society had become so deeply
embedded in the popular psyche that it was taken completely for granted.3
1 Henry M. Hart, Law and Contemporary Problems, (1958), p428
2 Ibid
3 McAuley & McCutcheon, Criminal Liability (Round Hall, 2000), p60

The general populace were content with the new public regulated body, and as such the
transition, though long, was relatively smooth.
However, transferring the power from the law-making body to a law-enforcing body can
have its challenges: It presents also less obvious, or less noticed, difficulties of
transferring from the legislature to enforcement officials the de facto power of
determining what the criminal law in action shall be.4 This burden and responsibility
opens the door for abuse, as we shall see in point 3.
2. While enforcement officials are charged with enforcing the law in society and calling
for penalty those who resist it, they have little discretion in its enforcement.
To the extent that the activities of enforcement officials are confined to securing
compliance with what have been described as the basic obligations of responsible
citizenship, their discretion will tend to be reduced to the minimum which the necessities
of the administration of law admit.5
Higher social morale leads to more compliance and as such the less conflict there will be
between enforcement officials and the public. In this case, the job of an enforcement
official is not difficult.
If a police officers job is, in fact, not made easy, or indeed where a police officer either
purposefully or mistakenly does not carry out his or her job effectively, there are a
number of provisions, as noted by McAuley.
The rule at common law was that, provided he used no more force than was necessary, a
person was entitled to resist a police officer even where the sole purpose in doing so was
wrong to avoid being unlawfully arrested or detained.6
The police, under Common Law, were not allowed use discretion where there was
resistance during an arrest. This in turn had a number of caveats and was quite unclear.
The Irish jurisdiction, through the Non-fatal Offences Against the Person Act, 1997,
provides more clarity, however.
A person who believes circumstances to exist which would justify or excuse the use of
force has no defence if he or she knows that the force is used against a member of the
Garda Sochana acting in the course of the members duty or a person so assisting such

4 Henry M. Hart, Law and Contemporary Problems, (1958) p428


5 Ibid
6 McAuley & McCutcheon, Criminal Liability (Round Hall, 2000), p60

member, unless he or she believes the force to be immediately necessary to prevent harm
to himself or herself or another.7
These limitations of discretion do work towards disabling a tyrannous sort of selective
enforcement alluded to in point 1, but as we see in the next point, there are more complex
issues in this regard.
3. Enforcement officials are unaware of many criminal statutes, and there are laws that
are irrelevant and obsolete which will not be enforced as prescribed, giving rise to
selective enforcement.
Invariably staffs are inadequate for enforcement of all the criminal statutes which the
legislature in its unwisdom chooses to enact. Accordingly, many of the statutes go largely
unenforced. To this extent, their enactment is rendered futile.8
Hart speaks harshly of the legislature in this regard, but it is not without warrant. There
has been a statute book reform programme in Ireland ongoing for 13 years for this
purpose. On 13 July 2015, a total of 5,782 obsolete laws were revoked, including the
outlawry of criticising King Henry VIIIs second marriage and the practice of fasting in
reparation for the outbreak of bubonic plague in London in 1665.9
Hart defines such laws as not just futile, but worse than futile10, since most of these laws
do not become a dead letter, but rather sporadically implemented: criticism of Anne
Boleyn has only recently been outlawed, yet has been practiced for some time. At any
point, a law enforcer could have implemented the law, had he or she been aware of it, but
due to the obscurity of the law, was unable to and thus the laws, however obsolete, were
broken. Sporadic enforcement is an instrument of tyranny when enforcement officials are
dishonest, and can affect even the most well-meaning officials.
4. Even the most equivocal enforcement official will prioritise certain crimes over others
in the course of prosecution, and as such many law-breakers will not make reparation
for their crime.
7 Non-fatal Offences Against the Person Act, 1997, s18(6)
8 Henry M. Hart, Law and Contemporary Problems, 1958, p428-9
9 Marie OHalloran, State repeals almost 6,000 obsolete laws The Irish Times
(Dublin, 13 July 2015)
10 Henry M. Hart, Law and Contemporary Problems, 1958, p429

Even though he ought not to seek the power in advance, a conscientious prosecutor,
faced with the fact of more violators than he can prosecute, is likely to single out for
prosecution those whom he regards as morally blameworthy, in default of any better basis
of selection.11
In a superficial example it effectively means that murderers will be more likely
prosecuted than those who break a red light on a country road at 3am on a Sunday
morning. In terms of levels of justice, the morally wrong violator is obviously more at
fault than the violator who dismisses deontological adherence with very little risk.
However, at a deeper level, we see the law enforcers have, as in points 1 and 3, an
unwarranted power to selectively enforce the law. The enforcer will negate the legislative
judgement that all violators be prosecuted regardless of the intensity of their crime.12
5. Since punitive criminal law serves to rehabilitate criminals, it may be irrelevant in
non-traditional crimes where the law is not purposefully broken.
In the area of traditional crimes, enforcement officials have an opportunity to put the
dominant aim of the criminal law to inculcate understanding of the obligations of responsible
citizenship, and to secure compliance with them, into a meaningful relationship with its
subsidiary aim of rehabilitating people who have proved themselves to be irresponsible. In
the area of regulatory crimes, this is possible only if wilfulness is an ingredient of
criminality. The whole concept of curative-rehabilitative treatment has otherwise no
relevance in this area.
With such a statement as this, one must wonder if Hart has called a certain bluff on the
development of criminal law. If he is correct and it is a convincing claim the situation is
not too dissimilar to that of Tort Law prior to Hedley Byrne, where far more cases are being
brought to the courts of law than justifiable.
Moreover, a large-scale reform in this area could minimise the tyrannous abuses indicated to
in previous points.
Hart summarises the topic thus, unlike the antecedent determinations of the legislature and
the subsequent determinations of courts, [the decisions of police and prosecuting attorneys]
carry no authority as general directions to others for the future.13 However, we can see that

11 Ibid
12 Ibid
13 Ibid p428

such officials, in fact, do have an enormous and largely unwarranted power derived from the
sheer multitude of criminal statutes and cases.