Principle of Minimal Criminalisation

1413 Words Dec 23rd, 2012 6 Pages
Criminal Law Formative Essay

The Government intends to table the Clothing Degrading to Women (Prohibition) Bill 2011 in Parliament, following the example of other European Countries. The title of the Bill indicates that inter alia, the Government’s main intention is to promote gender equality across all cultural and religious groups in then UK. This memo discusses the legal feasibility of this Bill.

Principle of Minimal Criminalisation
This principle states that conduct should be criminalised only when ‘absolutely necessary’ as mentioned by Lord Williams of Mostyn. Recently, Parliament has too readily accepted that particular conduct is sufficiently harmful or wrong to warrant criminalisation rather than using less coercive methods of
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Therefore, this restricts their autonomy rather than protect it.

Legal Paternalism principle involves ‘allowing criminal law to be used to protect a person from harm to himself. The law is entitled to interfere with a person’s autonomy for his own good and to enhance his welfare.’[6] Using this principle, this type of conduct can be criminalised as it satisfies the Government’s main intention to support the women who are be ‘degraded’. However, Roberts states that “...a paternalist in my sense may interfere with another person’s self-regarding actions in order to protect those interests which the other would recognise as authentically his (eg. interest in continued life and bodily security) but not for the sake of interests the other disowns (eg. his moral interest in not having gay sex).” [7] This view suggests that this principle is based on subjectivity. In this case, the Government is making a generalisation that all women who wear a burkha, niqab, or hijab feel like they are being degraded. This may be true in some cases but definitely not in all cases. This is suggest by Nesrine Malik in an article called ‘Burkha ban: Why must I cast off the veil?’ in reaction to the French legislation to ban Muslim women from covering their faces in public.[8] In the case, R v Brown [1994], Lord Mustill says that “private morality...the standards by which they are to be judged are not those of the criminal law; and that if these standards are
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