Principle of Minimal Criminalisation

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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 regulation.[1] So the question to consider in this case would be whether this particular type of clothing as mentioned in Section 1 needs to be criminalised in order to protect liberalism and individual autonomy in society. Lord Williams of Mostyn further develops this principle by saying that "In considering whether new offences should be created, factors taken into account include whether: the behaviour in question is sufficiently serious to warrant intervention by the criminal law; the mischief could be dealt with under existing legislation or by using other remedies; the proposed offence is enforceable in practice; -- the proposed offence is tightly drawn and legally sound; and -- the proposed penalty is commensurate with the seriousness of the offence. The Government also takes into account the need to ensure, as far as practicable, that there is consistency across the sentencing framework."[2]

Firstly, we should look at the seriousness of the offence to determine whether criminal law intervention is required. This can be done looking at the various principles of criminalisation.

Using the harm principle, ‘clothing degrading to women’ could satisfy the principle as long as the criminalisation of this type of...
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