Legislating against things that are already illegal

[IvanV]

The government proposes to bring in a law to make drink spiking a criminal offence. Various laws already make drink spiking utterly illegal, and last year the government said (BBC) that there were no gaps or loopholes in current laws, so there was no requirement for it to be a specific offence. But they have apparently more recently changed their mind and decided to make it specifically illegal (Home Office) on top of all the ways it is already illegal.

The government has apparently been doing quite a lot of legislating against things that are illegal. An An opinion piece in the Economist (paywalled) a few weeks ago drew attention to a list of examples including cat-napping. I suppose that a government that claims to be in favour of releasing us from laws and regulations can claim it hasn't further restricted our lives if it is mainly legislating against things that are already illegal.

But sometimes it is worth making something specifically illegal, because it proves awkward to prosecute under existing laws, even when there are no gaps. If there is a specific thing that happens frequently, it can just makes it a lot easier if it can be prosecuted under a specific offence.

An example of that are the laws on dangerous and careless driving. Dangerous and careless driving, especially if they cause damage to people or property, were already illegal under general common law negligence precedent, and also manslaughter law in case of deaths. In many countries, road deaths are prosecuted under homicide legislation. But British juries proved unwilling to find dangerous drivers guilty of manslaughter or negligence. So we got our specific laws. I think those laws are very badly framed. But at least they presented a greater practical potential for deterring and punishing negligent drivers than the laws that already made them illegal.

[shpalman]

... at least they presented a greater practical potential for deterring and punishing negligent drivers than the laws that already made them illegal.

I mean, this is the point, if people aren't being deterred by the existing law or their personal morality, or just think it won't apply to them because they won't get caught or something.

[snoozeofreason]

I can't get past the paywall, so I don't know whether it mentions the Assaults on Emergency Workers (Offences) Act 2018 but you could probably add it to this category. It has, of course, always been illegal to assault an emergency worker. The act increased sentences for such offences, but this is something that can be (and in fact is) handled by sentencing guidelines without, so far as I am aware, requiring additional legislation. I take the point that sometimes a law might be needed to address difficulties in prosecuting an offence, but I can't see that the act in question does that.

[Grumble]

Sunak wants to appear to be achieving things.

[IvanV]

I can't get past the paywall, so I don't know whether it mentions the Assaults on Emergency Workers (Offences) Act 2018 but you could probably add it to this category. It has, of course, always been illegal to assault an emergency worker. The act increased sentences for such offences, but this is something that can be (and in fact is) handled by sentencing guidelines without, so far as I am aware, requiring additional legislation. I take the point that sometimes a law might be needed to address difficulties in prosecuting an offence, but I can't see that the act in question does that.

Part of this trend has been about increasing sentences, which, as you say, is often unnecessary as it can be done through sentencing guidelines. A lot of our numerous driving offences could be rolled up into one offence with greater distinction in the sentencing guidelines, probably resulting in greater consistency. But I think they bring in a new law as that creates greater publicity for burnishing their tougher-on-crime credentials - both Labour and Tory - which they might not get if it was just the sentencing guidelines.

A strange one is the fairly recent (about 7-10 years ago) legislated offence of causing death while driving without insurance. It is already illegal to drive without insurance, and the penalties are fines, disqualifications and potentially compensation orders. Causing death by dangerous or careless driving is illegal, with penalties including long custodial sentences. The strangeness of the offence is that it only makes a material difference if the death wasn't the fault of the uninsured. If the uninsured caused death and it was their fault, then there are already large custodial sentences available, and the additional conviction would not add to that. But if someone was killed, not the fault of the uninsured, but for example judged misadventure, or the negligence or deliberate action of a third party, the uninsured is still automatically convicted of it, as it is a strict liability offence. I find this odd that anyone would want to apply an additional conviction in such cases. And any distinction in sentencing could have been handled through the sentencing guidelines for driving without insurance, unnecessary as that may seem.

[snoozeofreason]

The government is proposing to introduce a separate criminal offence of assaulting a shop worker. The Labour Party has already called for such an offence.

The new offence will carry a maximum sentence of six months.

Perpetrators could also receive an unlimited fine and be banned from the shop where they committed the offence.

Serial offenders could be forced to wear tags so their movements can be tracked and £50m will be spent on facial recognition technology.

Dedicated facial recognition units will be used in high streets to catch perpetrators and prevent shoplifting. Police have been told to check more CCTV images against police databases.

In more serious cases, offenders found guilty of grievous bodily harm will face jail sentences.

But anyone convicted of the new offence would not routinely go to prison.

It is, of course, already illegal to assault a shop worker. Offenders guilty of grievous bodily harm can already be charged with, well, grievous bodily harm, which can already result in a jail sentence, potentially a very long one. If it was necessary to adjust sentences for such offences, this could be done using sentencing guidelines. I am not sufficiently knowledgeable to say with certainty whether any new legislation would be required in order to give courts the option of forcing offenders to wear tags or ban them from specific locations, but I suspect that it is not.

I do get the point that retail crime is on the rise and something needs to be done to address it, but there are many "somethings" that would be much more effective than this one.

[bjn]

I thought that one of the main deterrents to crime was the likelihood of being caught, much less so the severity of the punishment should you be caught. Shouting loudly about “being tough on crime” makes for easy press, even if you aren’t willing to put money into actually catching the baddies.

[snoozeofreason]

Anna Firth's Pet Abduction Bill has now reached its report stage in parliament. The bill would make abduction of cats or dogs a specific offence punishable with up to five years imprisonment. It seems a bit pointless because, so far as I can make out, any offence prosecutable by the bill would also be prosecutable under various sections of the existing Theft Act 1968 and these sections would allow for longer sentences.

As an example, when moving the bill, Firth says

Only last month, my local paper, the brilliant Southend Echo, carried an article about two thugs in Benfleet who jumped out of their van and hit a pensioner over the head with a lump of wood in an attempt to force him to hand over his beloved cocker spaniel.

IANAL but it sounds to me that this would be prosecutable as assault with intent to rob, which can be punished by life imprisonment, so I don't see what the point would be of prosecuting it under an act with a maximum sentence of five years. And if it was felt that the actual sentences imposed for Theft Act prosecutions were too low, that could be dealt with by changes to sentencing guidelines, which do not require any new legislation to be enacted.

Elsewhere in the debate Peter Gibson echoes an argument often made by defenders of the bill

Pets simply have far more than simply monetary value to us, and it is right that the law seeks to acknowledge that, and marks them out as different from inanimate objects.

However the bill does not seem to contain any specific mention of the animate nature of cats and dogs. If anything it seems to imply that they are property. For example the bill allows for a defence that a person abducting a dog believed that it was a stray dog. If someone abducted me, they would not be able to defend themselves on the grounds that I was a stray person. And Theft Act sentencing guidelines already recognise that an item stolen may have more than simply monetary value.

Pet abduction is a genuine problem but, as happens too often when politics touches on the criminal justice system, politicians are not looking for solutions to the problem so much as for ways to leverage it in order to gain favourable publicity.

That said Hansard's record of the debate does contain some entertaining discussion of the relative merits of cats, dogs, and tortoises.