Legislating against things that are already illegal
Posted: Wed Feb 28, 2024 11:06 am
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.
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.